Cl)e  ILitJtarp 

of  tbe 

Onitiersitp  of  jQottl)  Carolina 


Collection  of  jl^ortg  Caroliniana 

^nttolocl)  fap 

Jogn  &prunt  l^tll 

of  t!)e  eilass  of  1880 


CBM'b.Z 
IS55 


UNIVERSITY  OF  N.C.  AT  CHAPEL  HILL 


00035471765 

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REVISED   CODE 


/    NORTH   CAROLINA, 


ENACTED    BT   THE 


GENERAL  ASSEMBLY  AT  TIE  SESSION  OF  1854; 


TOGETHER  WITH 


OTHER  ACTS  OF  A  PUBLIC  AND   GENERAL  NATURE,  PASSED  AT 
THE  SAME  SESSION; 


THE    CONSTITUTION    OF   THE   STATE  —  THE   CONSTITUTION    OF    THE   UNITED    STATES,  ETC.,  ETC. 


PkEPAKED    UJSDEK    ACTS    OF   THE    GESEB.tl,  ASSEMBLY    PASSED    AT   THE    SESSIONS    OF 

1850  AND  1854, 


BARTHOLOMEW  F.  MOORE  AND  ASA  BIGGS. 


PRINTED  AND  PUBLISHED  UNDER  THE  SUPERVISION  AND  DIRECTION  OP 

BARTHOLOMEW  P.  MOORE  AND  WILLIAM  B.  RODMAN 


IN      ONE      VOLUME 


BOSTON: 

LITTLE,   BROWN  AND   COMPANY, 

1855. 


Entered  according  to  Act  of  Congress,  in  the  year  1855,  by 

WILLIAM  B.  RODMAN  AND  B.  F.  MOORE, 

On  behalf  of  the  State  of  North  Carolina  the  proprietor,  in  the  Clerk's  Office  of  the  District  Court 

of  the  United  States  for  the  District  of  Newbem,  North  Carolina. 


CAMBKIDGE  : 
ALLEN    AND    FARNItAM,   rniNTEES. 


PREFACE 


OF    THE   COMMISSIONERS    OF    1833. 


The  revision  and  consolidation  of  the  whole  public  statute  law  will 
constitute  an  important  epoch  in  the  legislative  history  of  North  Carolina. 
In  presenting  this  work  to  the  public  the  commissioners  for  superintend- 
ing its  publication,  have  thought  that  some  facts,  connected  with  and 
illustrating  that  history,  might  be  neither  an  inappropriate  nor  uninter- 
esting introduction.  Their  limits  confine  them  to  a  brief  summary,  and 
compel  them  to  omit  much,  both  of  detail  and  remark,  that  would  be 
necessary  to  do  justice  to  the  subject. 

The  first  permanent  settlement  in  North  Carolina  was  made  about  the 
year  1660,  by  emigrants  from  Virginia,  on  the  north  side  of  Albemarle 
Sound,  and  probably  on  Durant's  Neck  in  Perquimons  county,  lying 
between  Perquimons  and  Little  Rivers.  The  oldest  land  title  is  a  con- 
veyance for  that  neck  of  land  from  the  king  of  the  Yeopim  Indians  to 
George  Durant,  dated  in  1662.  On  the  twenty-fourth  of  March,  1663, 
King  Charles  the  Second  granted  to  Edward,  Earl  of  Clarendon,  and 
others,  as  true  and  absolute  Lords  Proprietors,  all  the  country  from  the 
Atlantic  to  the  Pacific  Ocean,  included  between  the  thirty-first  and 
thirty-sixth  parallels  of  north  latitude ;  and  on  the  thirtieth  of  June,  1665, 
by  a  second  charter  he  enlarged  the  powers  of  the  grantees,  and  extended 
their  boundaries  so  as  to  include  all  the  country  between  the  parallels  of 
thirty-six  degrees  thirty  minutes  and  twenty-nine  degrees,  north  latitude 
These  grants  will  be  found  in  the  second  volume  of  this  work.*  Among 
other  powers  which  they  conferred  on  the  Lords  Proprietors  was  that  of 

*  2d  Vol.  p.  1  and  43T,  published  in  1837. 


PEEFACE. 


enacting  laws  and  constitutions  for  the  people  of  that  province  by  and 
ivith  the  advicCy  assent,  and  approbation  of  the  freemen  thereof  or  of  the 
greater  part  of  them,  or  of  their  delegates  or  deputies,  who  were  to  be 
assembled  from  time  to  time  for  that  purpose.  In  the  year  1663,  George 
Drummond  was  appointed  by  Governor  Berkley  of  Virginia,  in  pursu- 
ance of  instructions  from  the  Lords  Proprietors,  the  first  governor  of 
the  colony,  then  known  as  the  county  of  Albemarle.  In  October,  1677, 
Governor  Drummond  was  succeeded  by  Samuel  Stephens,  who  was 
authorized  to  grant  land,  reserving  to  the  Lords  Proprietors  one  half  of 
the  gold  and  silver  ore.  At  this  time  the  first  constitution  was  given  to 
the  colony.  It  directed  that  the  governor  should  act  with  the  advice  of 
a  council  of  twelve,  one  half  to  be  appointed  by  himself,  the  other  half 
by  the  assembly;  and  the  assembly  was  to  be  composed  of  the  governor, 
the  council,  and  twelve  delegates  chosen  by  the  freeholders.  Historians 
do  not  agree  as  to  the  precise  year,  in  which  the  first  legislative  body  in 
North  Carolina  convened.  It  was  certainly,  however,  either  in  1666,  or 
1667.  This  legislature  was  called  "the  Grand  Assembly  of  the  County 
of  Albemarle;"  and  on  its  petition  the  Lords  Proprietors,  by  an  instru- 
ment  since  called  the  "Great  Deed  of  Grant,"*  directed  that  lands 
should  be  held  by  the  inhabitants  of  the  said  county,  on  the  same  terms 
and  conditions  as  lands  were  held  by  the  inhabitants  of  Virginia.  The 
principal  acts  of  this  assembly  were  such  as  were  believed  to  be  required 
by  the  peculiar  situation  of  the  country,  and  were  prompted  by  an  anx- 
ious desire  to  increase  its  population.  Suits  for  any  debts  created  out  of 
the  country  were  prohibited  for  five  years  —  new  settlers  were  exempted 
from  taxation  for  one  year  —  the  right  to  a  certain  quantity  of  land, 
acquired  by  migration,  could  not  be  transferred  until  the  owner  had 
remained  two  years  in  the  country  — dealers  from  abroad  were  prohibited 
from  trafficking  with  the  Indians ;  and  as  there  were  no  regular  ministers, 
marriages  might  be  contracted  by  a  simple  declaration  by  the  parties  of 
their  mutual  consent,  made  before  the  governor  or  a  member  of  the  coun- 
cil, in  the  presence  of  a  few  neighbors.  These  laws  were  transmitted  to, 
and  approved  by,  the  Lords  Proprietors,  who  had  reserved  to  themselves 
a  veto  on  the  acts  of  the  Assembly.  In  July,  1669,  the  Lords  Proprietors 
adopted  a  new  form  of  government  for  their  colony.    It  was  styled  "  The 

*  See  2tl  Vol.  p.  13. 


Fundamental  Constitutions  of  Carolina,"  and  was  the  production  of  the 
celebrated  John  Locke.*  Its  provisions  were  so  illy  adapted  to  the  situa- 
tion of  the  country,  and  to  the  habits,  customs,  and  feelings  of  the  people 
for  whom  it  was  intended,  that  all  the  efforts  of  the  proprietors  could 
never  carry  it  into  practical  operation.  After  producing  great  discontent, 
faction,  and  disorder  throughout  the  colony  for  more  than  twenty  years, 
it  was  finally  abrogated  in  1693.  By  one  of  its  provisions,  the  eldest 
Lord  Proprietor  was  called  Palatine ;  and  the  style  of  the  enactments 
by  the  Grand,  afterwards  called  General,  Assembly,  during  the  whole 
of  the  Proprietary  government,  was  thus  — "  Be  it  enacted  by  his 
Excellency  the  Palatine  and  the  rest  of  the  true  and  absolute  Lords 
Proprietors  of  Carolina,  by  and  with  the  advice  and  consent  of  the  rest 
of  the  members  of  the  General  Assembly  now  met  at  for  the 

north-east  part  of  the  said  province,  and  it  is  hereby  enacted  by  the 
authority  of  the  same."  The  acts  were  signed  by  the  governor,  by  the 
deputies  of  the  Lords  Proprietors,  (each  proprietor  having  one  deputy,)  and 
by  the  speaker  of  the  house  of  delegates.  No  record  is  to  be  found,  in 
any  of  our  public  offices,  of  acts  passed  prior  to  the  session  of  "  a  General 
Biennial  Assembly,  held  at  the  house  of  Captain  Richard  Sanderson,  at 
Little  River,  begun  the  seventeenth  day  of  November,  1715,  and,  con- 
tinued by  several  adjournments,  until  the  nineteenth  day  of  January, 
1716."  It  seems  that  a  revisal  of  all  the  acts  of  the  assembly  up  to  that 
period  had  been  made  under  the  directions  of  an  act  of  the  preceding 
session,  which  is  not  now  extant.  A  manuscript  copy  of  the  acts  of 
1715,  much  mutilated,  is  on  file  in  the  office  of  the  secretary  of  State  of 
North  Carolina.  Among  these  acts  is  one  entitled  "  An  Act  for  y"  con- 
firmation of  y*  laws  passed  this  session  of  Assembly  and  for  repealing 
all  former  laws  not  herein  particularly  expressed."  After  this  preamble, 
"  Whereas  in  pursuance  to  an  act  of  Assembly  made  and  ratified  y=  sixth 
day  of  November  last  past  the  ancient  standing  laws  of  this  Government 
have  been  carefully  revised,"  it  enacts  "  That  all  laws  heretofore  made 
within  this  province,  such  only  excepted  as  by  their  particular  titles  are 
hereby  expressly  continued  and  revived,  are  and  stand  hereby  repealed, 
annulled,  and  void,  and  that  all  laws  now  made,  passed,  and  confirmed 
this  present  session  of  Assembly,  together  with  such  other  as  are  here- 

*  2d  Vol.  p.  449. 


Vlll  PREFACE. 

after  mentioned  to  be  continued,  shall  be  of  full  force  and  shall  be  hence- 
forward deemed  taken  and  adjudged  as  the  body  of  the  laws  of  this 
Government  and  no  other  heretofore  made."  It  then  provides  for  rights 
acquired  under  the  acts  repealed,  specifies  the  acts  continued  in  force, 
and  goes  on  to  declare —  "  That  the  chief  justice  and  the  clerk  of 
each  and  every  precinct  court  shall  take  care  that  the  transcript  or  book 
of  laws  deposited  in  his  or  their  custody  shall  be  constantly  laid  open 
upon  the  court  table  during  the  sitting  of  the  court  for  the  perusal  of  such 
members  of  the  court  or  other  persons  litigating  causes  therein  as  shall 
have  occasion  so  to  do  "  — and  also  "  that  the  clerk  of  each  court  shall  at 
the  next  court  after  receipt  thereof  publicly  and  in  open  court  read  over 
the  same  and  so  yearly  at  the  first  court  next  following  the  first  day  of 
May  under  the  penalty  of  five  pounds  for  such  neglect."  A  number  of 
well  drawn  and  important  acts  were  passed  at  this  session;  among  which 
may  be  mentioned  one,  "  An  Act  concerning  old  titles  of  lands  and  for 
limitation  of  actions  and  for  avoiding  suits  in  law,"  the  provisions  of 
which,  with  slight  alterations,  have  continued  in  force  to  the  present  day. 
On  the  twenty-fifth  day  of  July,  1729,  seven,  of  the  eight  proprietors  of 
Carolina,  in  consideration  of  seventeen  thousand  five  hundred  pounds 
sterling,  conveyed  all  their  rights,  privileges,  and  franchises  to  George 
the  Second,  King  of  Great  Britain ;  and  Earl  Carteret,  afterwards  Lord 
Granville,  the  eighth  lord  proprietor,  conveyed  all  his  right  of  jurisdiction 
over  the  said  province  or  colony,  reserving  his  one  eighth  part  of  the  soil 
and  territorial  rights.  The  proprietary  government  then  ceased  and  the 
regal  government  commenced.  The  last  General  Assembly  held  under 
the  proprietary  government  met  at  Edenton  on  the  twenty-seventh  day 
of  November,  1729,  and  the  first  under  the  royal  government  met  at  the 
same  place  in  the  year  1734.  It  may  be  proper  here  to  remark,  (though 
there  is  some,  confusion  in  history  as  to  this  point,)  that  the  division,  into 
North  and  South  Carolina,  had  probably  been  consummated  before,  or 
about  the  year  1700.  George  Burrington  was  appointed  by  the  king  on 
the  twenty-ninth  of  April,  1730,  the  first  royal  governor.  His  council  con- 
sisted of  seven  members,  three  of  whom  with  the  governor  formed  a 
quorum.  They  were  appointed  by  the  crown,  except  that  the  governor 
and  council  might  temporarily  fill  vacancies,  and  constituted  the  first 
branch  of  the  legislature.     Burrington  having  abdicated,  Gabriel  Johnston 


PREFACE. 


was  appointed  governor,  the  ablest  of  all  the  colonial  governors;  not  less 
distino-uished  for  his  energy  and  prudence  than  for  his  extensive  classical 
and  scientific  attainments.  He  continued  in  office  from  1734,  till  his 
death  in  1752.  During  this  period  the  style  of  enactment  was  as  fol- 
lows—  "  We  pray  that  it  may  be  enacted  and  be  it  enacted  by  his  Excel- 
lency Gabriel  Johnston,  Esq.,  Governor,  by  and  with  the  advice  and 
consent  of  his  Majesty's  council  and  General  Assembly  of  this  province 
and  it  is  hereby  enacted  by  the  authority  of  the  same."  After  the  death 
of  Governor  Johnston,  Matthew  Rowan  first,  as  president,  and  then  suc- 
cessively, Arthur  Dobbs,  William  Tryon,  and  Josiah  Martin,  as  governors, 
presided  over  the  province  until  the  revolution,  in  1776.  The  style  of 
enactment  was  changed  after  the  year  1753.  It  was  then  "  Be  it  enacted 
by  the  Governor,  Council,  and  Assembly  and  by  the  authority  of  the 
same."  The  acts  were  signed  by  the  governor,  president  of  the  council, 
and  speaker  of  the  assembly,  —  the  council  and  assembly  being  separate 
bodies,  — and  were  subject  to  the  approval  or  disapproval  of  the  king  in 
council.  At  the  session  of  the  General  Assembly  held  at  Newbern  on 
the  seventh  day  of  March,  1746,  after  a  preamble  that "  Whereas  for  want 
of  the  laws  of  this  Province  being  revised  and  printed,  the  magistrates  are 
often  at  a  loss  how  to  discharge  their  duty,  and  the  people  transgress 
many  of  them  through  want  of  knowing  the  same,"  it  is  enacted,  "  That 
the  Honorable  Edward  Mosely,  Esq.,  Samuel  Swann,  Esq.,  the  Honora- 
ble Enoch  Hall,  Esq.,  and  Mr.  Thomas  Barker,  or  the  majority  of  them, 
be  and  they  are  hereby  nominated  and  appointed  commissioners  to  revise 
and  print  the  several  acts  of  assembly  in  force  in  this  province."  They 
are  required  to  "  revise  the  said  acts  of  assembly,  and  compile  them  into 
one  body,  and  make  an  index,  marginal  notes,  and  references  thereto,  and 
to  lay  the  same  before  the  next  succeeding  General  Assembly  after  they 
shall  have  so  revised  and  compiled  them,  to  be  ratified  and  confirmed." 
By  subsequent  sections,  the  laws  so  revised  and  ratified  are  to  be  printed 
and  distributed,  and  the  copies  so  printed  are  to  be  received  in  evidence 
before  any  judicature.  This  act  was  passed  on  the  earnest  and  repeated 
recommendations  of  Governor  Johnston.  Of  the  commissioners  so  ap- 
pointed, Edward  Mosely  and  Samuel  Swann  alone  appear  to  have  acted ; 
and,  Mosely  having  died  before  the  completion  of  the  work,  Samuel 
Swann  reported  to  the  General  Assembly  at  their  session  on  the  sixteenth- 


of  October,  1749.  At  that  session  an  act  was  passed  to  confirm  this 
revisal.  The  preamble  states  "Whereas  the  whole  body  of  the  laws 
of  this  Province  to  the  seventh  day  of  March  in  the  year  of  our  Lord  one 
thousand  seven  hundred  and  forty-six  have,  in  pursuance  of  the  act,  &c. 
&c.,  been  carefully  compiled  and  revised,  and  the  said  revisal  laid  before 
both  houses  of  this  present  Assembly  and  approved  of  by  the  said 
houses."  The  act  then  recites  the  acts  revised  and  confirmed,  directs 
them  to  be  printed,  and  the  printed  copies  to  be  evidence.  It  repeals  all 
acts  not  confirmed,  and  saves  the  rights  of  parties,  &c.  In  pursuance  of 
this  act,  the  code  of  laws  so  revised  was  printed  and  published  at 
Newbern,  by  James  Davis,  in  the  year  1752,  under  the  title :  "  A  Col- 
lection of  all  the  public  Acts  of  Assembly  of  the  Province  of  North 
Carolina,  now  in  force  and  use ;  together  with  the  titles  of  all  such  laws 
as  are  obsolete,  expired,  or  repealed ;  and  also  an  exact  table  of  the  titles 
of  the  Acts  in  force.  Revised  by  Commissioners  appointed  by  an  Act  of 
the  General  Assembly  of  the  said  Province  for  that  purpose,  and  exam- 
ined with  the  records  and  confirmed  in  full  Assembly.  Newbern  — 
printed  by  James  Davis :  MDCCLII."  Davis  was  the  first  public  printer, 
erected  the  first  printing-press,  and  this  was  the  first  book  printed,  in 
North  Carolina.  It  is  said  by  Martin  in  his  history,  that  this  act  confirm- 
ing Swann's  revisal  was,  through  some  jealousy  of  the  General  Assembly, 
disapproved  by  the  king  in  council.  Up  to  this  period  the  acts  of  the 
Assembly  had  been  promulgated  in  manuscript  copies,  which  were  trans- 
mitted to  the  judges  and  clerks  of  the  several  courts,  and  directed  to  be 
annually  read,  openly,  in  each  court.  Another  edition  of  the  public  laws 
was  published  by  James  Davis  at  Newbern  in  1765,  dedicated  to  Gov- 
ernor Tryon ;  and  still  another  in  1773,  dedicated  to  Governor  Martin. 
These  were  both  on  private  account.  Since  the  revolution  the  acts  of 
Assembly  have  been  regularly  printed  and  distributed,  at  the  end  of  each 
session.  The  last  session  of  the  General  Assembly  under  the  royal  gov- 
ernment, whose  proceedings  are  on  record,  was  held  at  Newbern  on  the 
second  day  of  March,  1774,  and  its  acts  are  signed  by  Josiah  Martin, 
governor,  James  Hasell,  president,  and  John  Harvey,  speaker,  on  the 
nineteenth  of  March,  1774. 

The   Assembly  met  again  in   April,  1775 ;  but  was  immediately  dis- 
solved by  the  governor.    i\.  meeting  of  deputies  from  the  different  counties 


PREFACE.  XI 

had  been  held  in  August,  1774,  and  by  adjournnaent  reassembled  in  April, 
1775.  The  deputies  again  met  in  convention  in  August,  1775,  and  ap- 
pointed a  provincial  council,  consisting  of  Samuel  Johnston,  Cornelius 
Harnet,  Samuel  Ashe,  Abner  Nash,  James  Coor,  Thomas  Jones,  Whit- 
mill  Hill,  William  Jones,  Thomas  Jones,  Thomas  Person,  John  Kinchen, 
Samuel  Spencer,  and  Waightstil  Avery.  The  revolution  was  then  in 
full  progress.  The  Mecklenburg  Declaration  of  Independence  was  signed 
on  the  twentieth  day  of  May,  1775.  Deputies  had  been  sent  to  the  con- 
tinental congress  in  1774,  and  1775.  The  Declaration  of  Independence 
by  the  United  States,  on  the  fourth  of  July,  1776,  was  proclaimed  at 
Halifax,  on  the  first  of  August  of  the  same  year,  by  direction  of  the 
council  of  safety.  A  congress  of  the  representatives  of  the  freemen  of 
the  State  of  North  Carolina,  assembled  at  Halifax  the  eighteenth  day  of 
December,  in  the  year  1776,  for  the  purpose  of  establishing  a  constitution 
or  form  of  government  for  the  State.  Besides  adopting  the  constitution, 
this  congress  performed  the  functions  of  an  ordinary  legislature ;  its  legis- 
lative acts,  however,  being  generally  limited  to  the  end  of  the  next  Gen- 
eral Assembly.  These  acts  were  styled  ordinances.  Richard  Caswell,  a 
distinguished  patriot  and  soldier,  was  the  president.  Among  others,  an 
ordinance  was  passed  directing  "  That  Thomas  Jones,  Samuel  Johnston, 
Archibald  Maclaine,  James  Iredell,  Abner  Nash,  Christopher  Neale,  Sam- 
uel Ashe,  Waightstil  Avery,  Samuel  Spencer,  Jasper  Charlton,  and  John 
Penn,  Esquires,  be  appointed  to  revise  and  consider  all  such  statutes  and 
acts  of  assembly  as  are,  or  have  been  in  force  and  use  in  North  Carolina, 
and  to  prepare  such  bills  to  be  passed  into  laws  as  may  be  consistent 
with  the  genius  of  a  free  people,  that  form  of  government  which  we  have 
adopted,  and  our  local  situation,  and  to  lay  the  same  before  the  next 
General  Assembly  for  their  approbation."  It  is  not  now  known  how 
many  of  these  commissioners  accepted  this  trust,  or  what  share  of  its 
execution  was  borne  by  any  one  of  them,  but  the  fruits  of  their  labors  are 
manifest  in  the  laws  passed  in  the  years  immediately  succeeding,  —  laws 
which  have  received  repeated  encomiums,  for  the  ability  and  skill  and 
accuracy  with  which  they  are  drawn.  The  style  of  enactment  was  now 
changed,  so  as  to  read  "  Be  it  enacted  by  the  General  Assembly  of  the 
State  of  North  Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the 
same,"  which  style  has  ever  since  been  continued. 


Xll  PKEFACE. 

By  an  act  passed  in  1715,  it  was  declared  that  "  the  common  law  is, 
and  shall  be  in  force  in  this  government,"  except  such  parts  as  relate  to 
the  practice  in  courts,  which  were  to  be  supplied  by  the  general  court, 
subject  to  the  approval  of  the  governor  and  council.  It  is  also  declared, 
that  "  all  statute  laws  of  England  providing  for  the  privileges  of  the 
people,  as  also  all  statute  laws  made  for  limitation  of  actions,  and  pre- 
venting of  vexatious  lawsuits,  and  for  preventing  immorality  and  fraud, 
and  confirming  inheritances  and  titles  of  land  are  and  shall  be  in  force 
here,  although  this  province  or  the  plantations  in  general  are  not  named." 
By  an  act  passed  in  1749,  the  statutes  of  Great  Britain  which  are  to 
be  in  force,  are  particularly  enumerated,  and  the  common  law  declared 
to  be  in  force  with  certain  exceptions.  And  by  an  act  passed  in  1778, 
reciting,  that  "  whereas  doubts  may  arise  upon  the  revolution  in  govern- 
ment whether  any,  and  what  laws  continue  in  force  here,"  it  is  enacted 
"  That  all  such  statutes,  and  such  parts  of  the  common  law,  as  were 
heretofore  in  force  and  use  within  this  territory,  and  all  the  acts  of  the 
late  General  Assemblies  thereof,  or  so  much  of  the  said  statutes,  common 
law,  and  acts  of  assembly,  as  are  not  destructive  of,  repugnant  to,  or 
inconsistent  with  the  freedom  and  independence  of  this  State  and  the 
form  of  government  therein  established,  and  which  have  not  been  other- 
wise provided  for,  in  the  whole  or  in  part,  not  abrogated,  repealed, 
expired,  or  become  obsolete,  are  hereby  declared  to  be  in  full  force  in  this 
State." 

At  the  session  of  the  General  Assembly,  in  1787,  it  was  enacted  "  That 
James  Iredell  be,  and  he  is  hereby  appointed  a  commissioner  to  revise 
and  compile  the  acts  of  the  General  Assemblies  of  the  late  Province  and 
present  State  of  North  Carolina,  and  to  insert  the  charter  from  the  crown 
of  Great  Britain,  &c.  —  and  further,  the  said  commissioner  is  hereby 
authorized  and  directed,  in  revising  and  collecting  said  acts,  to  leave 
out  all  laws  repealed  or  obsolete,  all  private  acts,  and  all  other  acts  on 
which  no  question  of  property  can  arise  :  and  further,  the  said  commis- 
sioner is  hereby  required  to  see  the  said  acts  printed  in  the  same  order 
and  in  the  same  words  in  which  they  now  stand,  with  marginal  notes 
of  the  contents  of  each  section,  a  marginal  reference,  and  a  copious 
general  index  with  reference  to  each  act,  and  the  contents  of  each 
section."     This  duty  was  performed  by  the  commissioner  appointed,  and 


the  laws  so  revised  were  printed  by  Hodge  and  Wills,  at  Edenton,  in  1789, 
including  the  acts  of  1788.  It  was  approved  in  every  respect  by  an  act 
passed  in  1791,  and  has  since  been  commonly  known  as  "  Iredell's  Re- 
visal."  In  the  year  1792,  Francois  Xavier  Martin,  in  obedience  to  a 
resolution  of  the  General  Assembly  of  the  preceding  year,  published  a 
"  Collection  of  the  statutes  of  the  Parliament  of  England  in  force  in  the 
State  of  North  Carolina ; "  of  which  work  it  may  only  be  remarked,  that  it 
was  utterly  unworthy  of  the  talents  and  industry  of  the  distinguished 
compiler,  omitting  many  important  statutes,  always  in  force,  and  insert- 
ing many  others,  which  never  were,  and  never  could  have  been  in  force, 
either  in  the  Province,  or  in  the  State.  In  the  year  1794,  also,  in  pur- 
suance of  a  resolution  of  the  General  Assembly  of  the  preceding  year, 
the  same  gentleman  pviblished  "  A  collection  of  the  private  acts  of 
the  General  Assembly,  from  the  year  1715  to  the  year  1790,  inclusive, 
now  in  force  and  use."  In  1800,  John  Haywood,  one  of  the  judges  of 
the  superior  courts,  published  "  A  Manual  of  the  laws  of  North  Carolina, 
arranged  under  distinct  heads,  in  alphabetical  order ;  with  references  from 
one  head  to  another  when  a  subject  is  mentioned  in  any  other  part  of  the 
book  than  under  the  distinct  head  to  which  it  belongs."  This  work  was 
a  great  favorite  with  the  public,  and  passed  through  several  editions. 
In  1803,  it  was  resolved  by  the  General  Assembly  "  that  Francois  Xavier 
Martin  collect  and  revise  the  public  acts  passed  since  the  publication  of 
Judge  Iredell's  Revisal,  to  the  end  of  the  present  session  inclusive ; 
which  said  revisal  shall  connect  the  acts  passed  since  Judge  Iredell's,  by 
notes  and  remarks,  adverting  to  such  as  appear  to  have  been  virtually 
repealed,  and  retaining  such  as  are  not  expressly  so,  and  cause  his  said 
revisal  to  be  printed."  This  revisal  was  prepared  and  published  by 
Mr.  Martin,  and  approved  by  the  siicceeding  legislature.  At  the  session 
of  the  General  Assembly  in  1817,  it  was  enacted,  «  That  a  committee  of 
three  persons  be  appointed  by  joint  ballot  of  both  houses,  whose  duty  it 
shall  be  to  revise  and  consolidate  the  public  acts,  and  parts  of  acts  of  the 
General  Assembly  of  this  State  heretofore  passed,  or  which  may  be 
passed  before  the  completion  of  their  work ;"  and  also,  "  That  it  shall  be 
the  duty  of  said  commissioners  to  enumerate  and  specify  those  statutes 
and  parts  of  statutes  of  Great  Britain,  which  are  in  force  within  this 
State."     The  commissioners  appointed  were,  John   Louis   Taylor,  chief 


XIV  PREFACE. 

justice  of  the  supreme  court,  Henry  Potter,  judge  of  the  district  court  of 
the  United  States,  and  Bartlet  Yancy,  speaker  of  the  senate.  The 
revisal,  completed  by  these  gentlemen  after  the  manner  of  Iredell's  revisal, 
was  ordered  by  the  legislature  to  be  published,  and  was  published  in  1821, 
under  the  superintendence  of  Judge  Potter,  the  acts  of  1820  being  in- 
cluded. This  work  has  usually  been  called  "  the  Revised  Code,"  or  the 
"  New  Revisal." 


PHEFACE 


CONTINUED  BY  THE  COMMISSIONERS  Or  1S54. 


At  the  session  of  the  General  Assembly,  in  1833,  it  was  enacted,  that 
three  commissioners  should  be  appointed  by  the  Governor,  "  to  collate, 
digest,  and  revise,  aU  the  public  statute  laws  of  the  State,"  with  instruc- 
tions to  reduce  into  one  act,  all  acts  and  parts  of  acts  upon  the  same 
subject,  and  distribute  the  acts  thus  consolidated,  under  proper  titles, 
divisions,  and  sections.  For  this  purpose  the  late  Gavin  Hogg,  Esq.,  and 
Gov.  Iredell,  with  the  Hon.  William  H.  Battle,  now  a  judge  of  the 
Supreme  Court,  were  appointed.  Mr.  Hogg,  by  reason  of  ill  health,  soon 
abandoned  the  commission ;  and  the  vacancy  was  filled  with  the  Hon. 
Frederic  Nash,  now  chief  justice  of  the  Supreme  Court.  The  plan  of 
revision  adopted,  was  "  simply  to  digest  and  consolidate  into  one  act,  all 
the  various  statute  laws  relating  to  one  subject,  occasionally  to  alter 
vicious  and  inadvertent  phraseology,  and  to  insert  into  the  body  of  the 
statute,  such  new  provisions  as  seemed  to  them  manifestly  proper,"  and 
to  incorporate  with  them,  such  British  statutes  as  were  in  force. 

The  work  was  finally  reported  to  the  General  Assembly  of  1836 ;  and 
at  that  session,  the  acts  thus  digested,  were  amended  and  passed  into 
laws,  entitled,  "  The  Revised  Statutes,"  which  were  comprised  wholly  in 
the  first  volume  printed  under  that  title,  —  the  second  volume  being  little 
else  than  a  collection  of  charters,  and  boundaries  of  counties. 

This  was  a  work  much  demanded,  and  was  favorably  received  by 
the  public.  From  the  construction,  however,  put  on  their  powers  by  the 
commissioners,  very  little  change  was  made  in  the  language  of  the  stat- 


utes,  as  they  were  originally  enacted,  or  last  revised.  To  some  extent, 
and  in  cases  very  palpably  requiring  it,  this  was  done  by  the  legislature 
of  1836. 

In  1850,  the  General  Assembly  deeming  another  revisal  of  the  statutes 
necessary,  empowered  the  Governor  to  appoint  three  commissioners  for 
that  purpose,  with  instructions  similar  to  those  prescribed  in  the  act  of 
1833.  The  undersigned  B.  R  Moore,  with  the  Hon.  R.  M.  Saunders, 
and  the  Hon.  Asa  Biggs  were  appointed ;  and  after  some  progress  in  the 
work,  Mr.  Saunders  resigned.  At  the  ensuing  session  of  the  Legislature, 
Messrs.  Biggs  and  Moore  were  directed  to  continue  and  complete  the 
unfinished  work.  In  its  execution,  (to  use  the  language  of  their  report  to 
the  General  Assembly  of  1854,)  they  "departed  in  one  respect,  very 
essentially  from  the  course  pursued  by  former  commissioners ;  they  not 
only  compiled,  and  brought  together  the  different  acts,  and  parts  of  acts 
on  the  same  subjects ;  but  they  consolidated  them,  by  fusing  them 
together,  and  giving  them  the  character  of  a  single  enactment ;  and  as  to 
a  great  many,  and  indeed  most  of  the  acts,  they  expunged  the  verbiage, 
where  it  was  merely  cumbersome  and  imparted  no  aid  in  ascertaining 
the  meaning  of  the  law." 

The  laws  as  revised  and  reported,  with  such  alterations  and  amend- 
ments as  were  deemed  proper,  were  passed ;  and  have  now  become  the 
law  of  the  land,  under  the  title  of  "  The  Revised  Code  of  North  Caro- 
lina." 

By  virtue  of  the  "  act  concerning  the  Revised  Code,"  the  undersigned 
were  appointed  superintendents  of  publication.  In  that  act  are  pre- 
scribed their  duties.  The  marginal  digests  of  the  sections  of  the  acts  as 
first  published,  have  not  been  revised  for  many  years  past,  imperfect  and 
scant  as  they  were.  Although  a  great  part  of  them  was  the  hasty  work 
of  the  public  printer,  they  had  undergone  no  change,  and  furnished 
almost  the  entire  material  of  the  index  to  the  matter  contained  in  the  stat- 
utes. These  digests  have  been  greatly  enlarged  in  number,  and  most  of 
them  were  corrected  in  phrase,  by  the  commissioners  of  revision ;  and  all 
have  received,  at  the  hands  of  the  undersigned,  much  additional  alteration. 
The  Constitutions  of  the  State,  and  the  United  States,  they  have  caused 
to  be  printed  with  a  marginal  digest,  and  an  index  following  each  instru- 
ment. 


In  regard  to  the  references  to  the  decisions  of  the  Suj^reme  Court,  they 
have  felt  much  embarrassed.  These  decisions  have  greatly  increased  in 
number  since  the  publication  of  the  Revised  Statutes  in  1837.  To  have 
referred  to  those  only,  which  directly  construed  the  words  of  the  statutes, 
would  have  answered,  very  imperfectly,  the  end  designed  ;  to  have  referred 
to  all  indirectly  connected  with  the  statute,  would  have  been  cumbrous. 
Moreover,  in  not  a  few  instances,  the  known  purpose  of  laws  having  been 
defeated  by  judicial  decision,  (a  calamity  which  sometimes  befalls  the 
best  considered  acts,)  an  attempt  has  been  made  to  regain  the  purpose, 
by  a  change,  in  the  Revised  Code,  of  the  language  which  defeated  it.  In 
such  cases  the  decision  is  of  little  consequence,  except,  perhaps,  to  aid  the 
inquiring  lawyer  to  discover,  that  the  case  is  of  no  authority  against  a 
change  of  the  construction,  while  it  may  mislead  those  who  skim  the  sur- 
face of  investigation.  In  such  cases,  they  have  not  prescribed  for  them- 
selves any  inflexible  rule,  but  have  endeavored  to  refer  to  all  the  leading 
cases  connected  with  each  subject,  which  they  thought  the  practising 
lawyer  would  likely  be  desirous  to  use.  Notwithstanding  all  the  care 
which  the  commissioners  have  been  able  to  use,  imperfections  will  doubt- 
less exist  in  their  work ;  but  having  discharged  their  duty,  with  faithful 
purpose  and  industry,  they  submit  it  to  the  public. 

B.   F.   MOORE, 
WILL.  B.   RODMAN. 


TABLE   OF   CONTENTS. 


Mecklenburg  Declaration  of  Independence,  and  Names  of  Delegates, 
Names  of  Delegates  to  State  Congeess  in  1776,      ... 
Declaration  of  Rights  and  State  Constitution,  with  the  Amendments 
Constitution  of  the  United  States,  with  the  Amendments, 
Chapter  1.     Abatement  of  Suits, 

Agriculture  and  Geology 

Amendment, 

Appeals,  &o.. 

Apprentices, 

Asylums, 

Attachment,  . 

Attorney-General  and  Solicitors, 

Attorneys  at  Law,     . 

Auctions  and  Auctioneers, 

Bail  in  Civil  Cases,   . 

Bastard  Children, 

Bills,  Bonds,  &c.       . 

Boats  and  Canoes, 

Book  Debts, 

Burning  Woods  and  Hunting,   . 

Cattle,  and  other  Stock, 

Chai-ities,  .... 

19.  Clerks  of  the  County  and  Superior  Courts, 

20.  Clerks  and  Masters  in  Equity,    . 

21.  Commissioners  of  Affidavits, 

22.  Common  Law,    . 
Comptroller, 
Constables, 
Coroners, 
Corporations, 
County  Boundaries, 
County  Revenue  and  Charges,  . 
County  Trustees, 
Court  Houses,  Prisons,  &c. 
Courts,  County  and  Superior, 
Courts  of  Equitj-, 

33.  Court,  Supreme, 

34.  Crimes  and  Punishments, 


2. 
3. 

4. 

5. 

6. 

7. 

8. 

9. 
10. 
11. 
12. 
13. 
14. 
15. 
16. 
17. 
18. 


23. 
24. 

25. 
26. 
27. 
28. 
29. 
30. 
31. 
32. 


91 
100 
101 
103 
105 
107 
110 
113 
113 
115 
115 
118 
119 
123 
124 
126 
126 
128 
131 
132 
139 
139 
143 
145 
147 
18G 
194 
201 


TABLE   OF   CONTENTS. 


CnAriER  35. 

Criminal  Proceedings, 

36. 

Currency,           .... 

37. 

Deeds  and  Conveyances, 

38. 

Descents,            .... 

39. 

Divorce  and  Alimony, 

40. 

Draining  and  Damming  Low  Lands, 

41. 

Electors  of  President  and  Vice  President,  . 

42. 

Entries  and  Grants, 

43. 

Estates,          .            .            .            .            . 

44. 

Evidence,           .... 

45. 

E.xecutions,  ..... 

46. 

Executors  and  Administrators,  . 

47. 

Fairs, 

48. 

Fences,  ..... 

49. 

Forcible  Entry  and  Detainer, 

50. 

Frauds  and  Fraudulent  Conveyances,   . 

51. 

Gaming  Contracts,    .... 

62. 

General  Assembly, 

53. 

Governor  and  Council, 

54. 

Guardian  and  Ward, 

55. 

Habeas  Corpus,         .... 

56. 

Husband  and  Wife, 

57. 

Idiots  and  Lunatics,  .... 

58. 

Infamous  Persons, 

59. 

Insolvent  Debtors,     .            .            ,            . 

60. 

Inspections,         .... 

61. 

Internal  Improvement, 

62. 

Justices  of  the  Peace, 

63. 

Landlord  and  Tenant, 

64. 

Legacies,  &c.,      .... 

65. 

Limitations,  ..... 

66. 

Literary  Fund  and  Common  Schools,    . 

67. 

Mad  Dogs,     ..... 

68. 

Marriage,             .... 

69. 

IMembers  of  Congress, 

70. 

Militia,    ..... 

71. 

Mills  and  Millers 

72. 

Mines,     ..... 

73. 

Money  remaining  in  the  hands  of  Clerks,  &c 

74. 

Names,    ..... 

75. 

Notaries,       ..... 

76. 

Oaths,     ..... 

77. 

Offices,          .            .            .            .            . 

78. 

Official  Bonds,    .... 

79. 

Ordinaries  and  Inns, 

80. 

Overseers,          .... 

81. 

Oysters,  and  other  Fish, 

82. 

Partition,             .... 

83. 

Patrol,           ..... 

84. 

Pensions,             .... 

TABLE   OF   CONTENTS. 


CiiAPTEK  85.     Pilots, 

86.  Poor, 

87.  Prisoners, 

88.  Processioning,     . 

89.  Public  Arms, 

90.  Public  Debt, 

91.  Public  Documents,    . 

92.  Public  Library,  . 

93.  Public  Printing, 

94.  Quarantine  and  Health, 

95.  Quo  Warranto  and  Jlandamus, 

96.  Registers, 

97.  Religious  Societies,    . 

98.  Replevin, 

99.  Revenue, 

100.  Rivers  and  Creeks, 

101.  Roads,  Ferries,  and  Bridges, 

102.  Salaries  and  Fees, 

103.  Seat  of  Government, 

104.  Secretary  of  State, 

105.  SherifiTs, 

106.  Slander  of  Women, 
_   107.  Slaves  and  Free  Persons  of  Color, 

108.  Statutes,  Repeal  and  Construction  of, 

109.  Strays, 

110.  Surety  and  Principal, 

111.  Towns, 

112.  Treasurer, 

113.  University,    . 

114.  Usury,     . 

115.  Vice  and  Immorality, 

116.  Waste,    . 

117.  Weights  and  Measures, 

118.  Widows, 

119.  Wills  and  Testaments, 

120.  Wrecks, 

121.  Act  concerning  Revised  Code, 


4G0 
470 
4  74 
479 
480 
483 
485 
486 
487 
490 
495 
497 
499 
501 
503 
530 
532 
542 
554 
556 
557 
563 
5G3 
580 
582 
585 
586 
591 
595 
597 
597 
598 
599 
600 
606 
614 
618 


APPENDIX. 

Acts  of  Congees.9  prescribing  the  Mode  of  Proving  the  Laws,  Records, 

&c.,  OF  THE  States,  •••.....  G23 

Acts  of  Congress  for  the  Naturalization  op  Foreigners,     .  .  625 

Index,   ....  cqi 


MECKLENBIJUG 
DECLARATION    OF    INDEPENDENCE, 

ADOPTED  ON  THE  TWENTIETH  OF  MAY,  1775. 


In  the  spring  of  1775,  the  leading  characters  of  Mecklen- 
burg county,  North  Carolina,  stimulated  by  that  enthusiastic 
patriotism  which  elevates  the  mind  above  considerations  of 
individual  aggrandizement,  and  scorning  to  shelter  themselves 
from  the  impending  storm  by  submission  to  lawless  power, 
etc.,  etc.,  held  several  detached  meetings,  in  each  of  which  the 
individual  sentiments  were,  "  that  the  cause  of  Boston  was 
the  cause  of  all ;  that  their  destinies  were  indissolubly  con- 
nected with  those  of  their  Eastern  fellow-citizens,  —  and  that 
they  must  either  submit  to  all  the  impositions  which  an  un- 
principled, and  to  them  an  unrepresented,  parliament  might 
impose,  — or  support  their  brethren  who  were  doomed  to  sus- 
tain the  first  shock  of  that  power,  which,  if  successful  there, 
would  ultimately  overwhelm  all  in  the  common  calamity." 
Conformably  to  these  principles.  Colonel  T.  Polk,  through 
solicitation,  issued  an  order  to  each  captain's  company  in  the 
county  of  Mecklenburg,  (then  comprising  the  present  county 
of  Cabarrus,)  directing  each  militia  company  to  elect  two  per- 
sons, and  delegate  to  them  ample  power  to  devise  ways  and 
means  to  aid  and  assist  their  suffering  brethren  in  Boston,  and 
also  generally  to  adopt  measures  to  extricate  themselves  from 
the  impending  storm,  and  to  secure  unimpaired  their  inalien- 
able rights,  privileges,  and  liberties,  from  the  dominant  grasp 
of  British  imposition  and  tyranny. 

In  conformity  to  said  order,  on  the  19th  of  May,  1775,  the 

said    delegation    met    in    Charlotte,    vested    with    unlimited 

powers;  at  which  time  official  news,  by  express,  arrived  of  the 

battle   of  Lexington  on  that  day  of  the   preceding   month. 

1 


MECKLENBURG   DECLARATION   OF   INDEPENDENCE. 

Every  delegate  felt  the  value  and  importance  of  the  prize,  and 
the  awful  and  solemn  crisis  which  had  arrived,  —  every  bosom 
swelled  with  indignation  at  the  malice,  inveteracy,  and  in- 
satiable revenge,  developed  in  the  late  attack  at  Lexington. 
The  universal  sentiment  was  :  let  us  not  flatter  ourselves  that 
popular  harangues,  or  resolves,  that  popular  vapor,  will  avert 
the  storm,  or  vanquish  our  common  enemy,  —  let  us  deliberate, 
—  let  us  calculate  the  issue,  —  the  probable  result;  and  then 
let  us  act  with  energy,  as  brethren  leagued  to  preserve  our 
property,  —  our  lives,  —  and  what  is  still  more  endearing,  the 
liberties  of  America.  Abraham  Alexander  was  then  elected 
chairman,  and  John  M'Knitt  Alexander,  clerk.  After  free 
and  full  discussion  of  the  various  objects  for  which  the  dele- 
gation had  been  convened,  the  subjoined  resolutions  were 
offered. 

A  number  of  by-laws  were  also  added,  merely  to  protect 
the  association  from  confusion,  and  to  regulate  their  general 
conduct  as  citizens.  After  sitting  in  the  court  house  all  night, 
neither  sleepy,  hungry,  nor  fatigued,  and  after  discussing  every 
paragraph,  they  were  all  passed,  sanctioned,  and  decreed, 
mianimously,  about  two  o'clock,  a.m.,  May  20.  In  a  few 
days,  a  deputation  of  said  delegation  convened,  when  Capt. 
James  Jack,  of  Charlotte,  was  deputed  as  express  to  the  con- 
gress at  Philadelphia,  with  a  copy  of  said  resolves  and  pro- 
ceedings, together  with  a  letter  addressed  to  our  three  repre- 
sentatives there,  namely,  Richard  Caswell,  William  Hooper, 
and  Joseph  Hewes,  —  under  express  injunction,  personally,  and 
through  the  State  representation,  to  use  all  possible  means  to 
have  said  proceedings  sanctioned  and  approved  by  the  general 
congress.  On  the  return  of  Captain  Jack,  the  delegation 
learned  that  their  proceedings  were  individually  approved  by 
the  members  of  congress,  but  that  it  was  deemed  premature 
to  lay  them  before  the  house.  A  joint  letter  from  said  three 
members  of  congress  was  also  received,  complimentary  of  the 
zeal  in  the  common  cause,  and  recommending  perseverance, 
order,  and  energy. 

The  subsequent  harmony,  unanimity,  and  exertion  in  the 
cause  of  liberty  and  independence,  evidently  resulting  from 
these  regulations,  and  the  continued  exertion  of  said  delega- 
tion, apparently  tranquillized  this  section  of  the  State,  and  met 
with  the  concurrence  and  high  approbation  of  the  council  of 
safety,  who  held  their  sessions  at  Newbw-n  and  Wilmington, 


MECKLENBURG   DECLARATION    OF   INDEPENDENCE. 

alternately,  and  who  confirmed  the  nominations  and  acts  of 
the  delegation  in  their  official  capacity. 

From  this  delegation  originated  the  court  of  inquiry  of  this 
county,  who  constituted  and  held  their  first  session  in  Char- 
lotte,—  they  then  held  their  meetings  regularly  at  Charlotte,  at 
Col.  James  Harris's,  and  at  Col.  Phifer's,  alternately,  one  week 
at  each  place.  It  was  a  civil  court  founded  on  military  pro- 
cess. Before  this  judicature,  all  suspicious  persons  were  made 
to  appear,  who  were  formally  tried  and  banished,  or  continued 
under  guard.  Its  jurisdiction  was  as  unlimited  as  toryism, 
and  its  decrees  as  final  as  the  confidence  and  patriotism  of  the 
county.  Several  were  aiTcsted  and  brought  before  them  fi-om 
Lincoln,  Rowan,  and  the  adjacent  counties. 


DECLARATION. 

NAMES  OP  THE  DELEGATES  PRESENT. 


COL.  THOMAS  POLK, 
EPHRAIM  BREVAKD, 
HEZEKIAH  J.  BALCH, 
JOHN  PHIFEE, 
JAMES  HARRIS, 
WILLIAM  KENNON, 
JOHN  FORD, 
RICHARD  BARRY, 
HENRY  DOWNS, 
EZRA  ALEXANDER, 
WILLIAM  GRAHAM, 
JOHN  QUEARY, 
ABRAHAM  ALEXANDER, 


JOHN  M'KNITT  ALEXANDER, 
HEZEKIAH  ALEXANDER, 
ADAM  ALEXANDER, 
CHARLES  ALEXANDER, 
ZACHEUS  WILSON,  Sen. 
WAIGHTSTIL  AVERY, 
BENJAMIN  PATTON, 
MATTHEW  M'CLURE, 
NEIL  MORRISON, 
ROBERT  IRWIN, 
JOHN  FLENNIKEN, 
DAVID  REESE, 
RICHARD  HARRIS,  Sen. 


Abraham  Alexander  was  appointed  chairman,  and  John 
M'Knitt  Alexander,  clerk.  The  following  resolutions  were 
offered,  namely, 

1.  Resolved,  That  whosoever  directly  or  indirectly  abetted, 
or  in  any  way,  form,  or  manner,  countenanced  the  unchartered 
and  dangerous  invasion  of  our  rights,  as  claimed  by  Great 
Britain,  is  an  enemy  to  this  country,  to  America,  and  to  the 
inherent  and  inalienable  rights  of  man. 

2.  Resolved,  That  we,  the  citizens  of  Mecklenberg  county, 
do  hereby  dissolve  the  political  bands  which  have  connected 
us  to  the  mother  country,  and  hereby  absolve  ourselves  from 
all  allegiance  to  the  British  crown,  and  abjure  all  political  con- 
nection, contract,  or  association,  with  that  nation,  who  have 


MECKLENBURG   DECLARATION    OF   INDEPENDENCE. 

wantonly  trampled  on  our  rights  and  liberties,  and  inhumanly 
shed  the  blood  of  American  patriots  at  Lexington. 

3.  Resolved,  That  we  do  hereby  declare  ourselves  a  free 
independent  people,  are,  and  of  right  ought  to  be,  a  sovereign 
and  self-governing  association,  under  the  control  of  no  power 
other  than  that  of  our  God  and  the  general  government  of  the 
congress  ;  to  the  maintenance  of  which  independence,  we  sol- 
emnly pledge  to  each  other  our  mutual  cooperation,  our  lives, 
oiir  fortunes,  and  our  most  sacred  honor. 

4.  Resolved,  That  as  we  now  acknowledge  the  existence  and 
control  of  no  law  or  legal  officer,  civil  or  military,  within  this 
county,  we  do  hereby  ordain  and  adopt  as  a  rule  of  life,  all, 
each,  and  every  of  our  former  laws,  —  wherein,  nevertheless, 
the  crown  of  Great  Britain  never  can  be  considered  as  hold- 
ing rights,  privileges,  immunities,  or  authority  therein. 

5.  Resolved,  That  it  is  further  decreed,  that  all,  each,  and 
every  military  officer  in  this  county,  is  hereby  reinstated  in  his 
former  command  and  authority,  he  acting  conformably  to 
these  regulations.  And  that  every  member  present,  of  this 
delegation,  shall  henceforth  be  a  civil  officer,  namely,  a  justice 
of  the  peace,  in  the  character  of  a  "  committee-man,^^  to  issue 
process,  hear  and  determine  all  matters  of  controversy,  accord- 
ing to  said  adopted  laws,  and  to  preserve  peace,  union,  and 
harmony  in  said  county ;  and  to  use  every  exertion  to  spread 
the  love  of  country  and  fire  of  freedom  throughout  America, 
until  a  more  general  and  organized  government  be  established 
in  this  province. 

After  discussing  the  foregoing  resolves,  and  arranging  by- 
laws and  regulations  for  the  government  of  a  standing  com- 
mittee of  public  safety,  who  were  selected  from  these  dele- 
gates, the  whole  proceedings  were  unanimously  adopted  and 
signed.  A  select  committee  was  then  appointed  to  draw  a 
more  full  and  definite  statement  of  grievances,  and  a  more 
formal  declaration  of  independence.  The  delegation  then  ad- 
journed about  2  o'clock,  a.m..  May  20. 


NAMES    OF    DELEGATES 


STATE    CONGRESS   IN   1776. 


The  following  are  the  names  of  the  delegates  who  attended 
the  Congress,  which  met  at  Halifax,  the  12th  of  November, 
■  1776,  and  which  formed  and  adopted  the  Bill  of  Rights  and 
Constitution  of  the  State.  The  seats  of  those  whose  names 
are  marked  *  were  vacated  by  appointments  to  office.  Those 
whose  names  are  marked  f  obtained  leave  of  absence  from 
Congress,  at  various  times,  previous  to  the  adoption  of  the 
Constitution.  Those  only  whose  names  are  not  marked, 
were  present  when  the  Bill  of  Rights  and  Constitution  finally 
passed. 


AssoN  County. 
THOMAS  WADE, 
DAVID  LOVE, 
WM.  PICKET.f 

Beaufort  County. 
JOHN  BARROW,t 
THOS.  RESl'ESS, 
THOS.  RESPESS,  Jun., 
FRANCIS  JONES, 
ROBERT  TRIPP. 

Bertie  County. 
WM.  GRAY, 
NOAH  HINTON, 
ZEDEKIAH  STONE. 

Bladen  County. 
THOS.  ROBESON, 
THOS.  OWEN, 
THOS.  AMIS, 
JAS.  COUNCIL. 

Brunswick  County. 
CORNELIUS  HARNETT, 
ARCH'D  McLEAN, 
LEWIS  DUPRE,t 
WM.  LORD. 

Bute  Coukty. 
JAS.  DENTON, 
THOS.  EATON, 
PHILEMON  HAWKINS, 


BENJAMIN  SEAWELL, 
BENJAMIN  WARD. 

Carteret  County. 
SOL'N  SHEPPARD, 
BRICE  WILLIAMS, 
JNO.  EATON, 
THOS.  CHADWICK. 

Chowan  County. 
JAS.  BLOUNT, 
THOS.  BENBURY, 
THOS.  JONES, 
LUKE  SUMNER, 
JACOB  HUNTER. 

Chatham  County. 
AMBROSE  RAMSEY, 
JNO.  BIRDSONG, 
MIAL  SCURLOCK, 
JOSIAH  HOGAN. 

Craven  County. 
WJI.  BRYAN, 
JNO.  BRYAN, 
CHRISTOPHER  NEALL, 
JNO.  TILGHMAN. 

CUSIBERLAND   CoUNTY. 

ROBERT  ROWAN, 
PHILIP  ALSTON,t 
WM.  RAND, 
ROBERT  COBB. 


NAMES   OF   DELEGATES. 


Currituck  Cousty. 
SAMUKL  .lAKVlS,' 

J  AS.  warn-:. 

KKDAK  MKRCHANT, 
HOLLOWKLL  WILLIAMS, 
THOS.  WILLIAMS. 

DoBBS  County. 
EICHARD  CASWELL, 
Snmx  BRIGHT, 
AlUIAIIAM  SHKl'PARD, 
KKXIAMIX  KXUM, 
AXDREW  BASS. 

Dui'LiN  County. 
JAS.  KENAN, 
THOMAS  GRAY.t 
AVM.  DICKSON, 
WM.  TAYLOR, 
JAMES  GILLESPIE. 

Edgcombe  County. 
WM.  HAYWOOD, 
ELISHA  BATTLE, 
JONAS  JOHNSTON, 
ISAAC  SESSUMS, 
WM.  HORN. 

Granville  County. 
THOS.  PERSON, 
ROBERT  LEWIS, 
MEiMUCAN  HUNT, 
JOHN  OLIVER. 

Guilford  County. 
DAVID  CALDWELL, 
JOSEPH  HINES, 
CHARLES  BRUCE, 
RALPH  GORRELL, 
ISHAM  BROWDER. 

Halifax  County. 
JOHN  BBADFORD, 

JAMES  HOGAN," 
EGBERT  HAYWOOD, 
"WILLIS  ALSTON, 
SAMUEL  WELDON, 
BENJAMIN  M'CULLOCH. 

Hertford  County. 
LAWRENCE  BAKER,t 
WM.  MURFREE, 
ROBERT  SUMNER, 
DAY  RIDLEY, 
JAMES  WRIGHT. 

Hyde  County. 
JOSEPH  HANCOCK, 
JOHN  JORDAN, 
BEN.IAJllN  PARMERLE, 
AMBROSE  JONES. 

Johnston  County. 
NEED'M  BRYAN,  ,Jun., 
JOHN   STEVENS, 
HENRY  RAINS, 
ALEXANDER  AVERYT. 

Martin  County. 
WM.  WILLIAMS, 
THUS.   HUNTER, 
JX(.).  IIAHDISON, 
SAMUEL  SMITHWICK. 


Mecklenburg  County. 
ROBERT  IRWIN, 
ZACHEUS  WILSON, 
HEZEKIAH  ALEXANDER,! 
WAIGHTSTIL  AVERY. 

New-Hanover  County. 

JOHN  ASHE, 
SAMUEL  ASHE, 
JOHN  DEVANE, 
SAMPSON  MOSELEY, 
JOHN  HOLLINGSWORTH, 

Northampton  County, 
ALLEN  JONES, 
JAMES  INGRAM,' 
THOS.  PARKER, 
HOWELL  EDMUNDS. 

Onslow  County. 
JOHN  SPICER, 
THOS.  JOHNSTON, 
BENAJAH  DOTY, 
EDWARD  STARKEY, 
HENRY  RHODES. 

Orange  County. 
THOS.  BURKE, 
NATHANIEL  ROCHESTER, 
ALEXANDER  MEBANE, 
JOHN  BUTLER, 
JOHN  McCABE. 

Pasquotank  County. 
HENRY  ABBOT, 
DEVOTION  DAVIS, 
ISAAC  GREGORY, 
DEMSEY  BURGESS, 
LEMUEL  SAWYER.t 

Perquimons  County. 
BENJAMIN  HARVEY, 
WII.KS   IIAKX  KV, 
THOMAS  HARVEY, 
WJI.  SKIXXEI!. 

Pitt  County^. 
BENJAMIN  JIAY, 
WM.  ROBSON, 
JAMES  GORHAM, 
GEORGE  EVANS,' 
EDWARD  SALTER. 

Rowan  County. 
MATTHEW  LOCK, 
GRIEEIIH  RUTHERFORD, 
WiM.  SHARPE, 
JAMES  SMITH, 
JOHN  BREVARD. 

Surry  County. 
ROBERT  LANIER, 
WM.  HALL, 
CHARLES  GORDON, 
JOSEPH  WILLIAMS. 

TUYON  ConNTY. 
JOSEPH  HARDF.N, 
ROBERT  ABERNATHY, 
WM.  GRAHAM, 
WM.  ALSTON, 
JOHN  BARBER.t 


NAJIES    OF   DELEGATES. 


Tyrbell  Countt. 
PETER  WYNN,t 
JERE.  FRAZIER, 
ISHAM  WEBB, 
BENJ.  BLOUNT. 

Wake  County. 
TIGNAL  JONES, 
JAMES  JONES, 
MICHAEL  ROGERS, 
JOHN  RICE, 
BRITAIN  FULLER.f 


Washington 
District, 

setiletnentj 

Towns  of 
Bath, 
Brunswick, 

Cajipbelton, 

Edenton, 

Halifax, 

Newbern, 

Salisbury, 


CHAS.  ROBESON, 
JOHN  CARTER, 
JOHN  HAILE, 
JOHN  SEVIER. 


WM.  BROWN, 
PARKER  QUINCE, 
THOMAS  HADLEY, 
JOSEPH  HEWES, 
WILLIE  JONES, 
ABNER  NASH, 
DAVID  NESBIT. 


DECLARATION  OF  RIGHTS, 


A  Beclaralion  of  Rights  made  by  the  Representatives  of  the 
Freemen  of  the  State  of  North  Carolina. 

Power  derived      Sect.  1.  That  all  political  power  is  vested  in  and  derived 

from  the  peo-     .  ^,  ,  , 

pie.  from  the  people  only. 

Eight  of  Gov-      Sect.  2.  That  the  people  of  this  State  ought  to  have  the 

peipie?'  ""  *^  sole  and  exclusive  right  of  regulating  the  internal  government 

and  police  thereof. 
None  entitled        Sect.  3.  That  no  man  or  set  of  men  are  entitled  to  exclusive 
pHvUeges'Jete.  or  separate  emoluments  or  privileges  from  the  community,  but 

in  consideration  of  public  services. 
Legislative  and      Sect.  4.  That  the  legislative,  executive,  and  supreme  ju- 
bVkeptTep- '°  dicial  powers  of  government,  ought  to  be  forever  separate  and 
arate.  distinct  from  each  other. 

Suspension  of       Sect.  5.  That  all  power  of  suspending  laws,  or  the  execu- 
aws  01  1    en.  ^.^^  ^^  laws,  by  any  authority,  without  consent  of  the  repre- 
sentatives of  the  people,  is  injurious  to  their  rights,  and  ought 
not  to  be  exercised. 
Elections  to  be      Sect.  6.  That  elections  of  members  to  serve  as  represent- 
atives in  General  Assembly,  ought  to  be  free. 
Bights  of  ar.-        Sect.  7.  That  in  all  criminal  prosecutions,  every  man  has  a 
naiprosecu-"'' right  to  be  informed  of  the  accusation  against  liim,  and  to 
'"'°'"  confront  the  accusers  and  witnesses  with  other  testimony,  and 

shall  not  be  compelled  to  give  evidence  against  himself. 
Mode  of  prose-      Sect.  8.  That  no  frccman  shall  be  ))ut  to  answer  any  crimi- 
scribed!"^        nal  charge,  but  by  indictment,  presentment,  or  impeachment. 
Jury  trial  in  Sect.  9.  That  no  freeman  shall  be  convicted  of  any  crime, 

cutToiis!  """^^'but  by  the  unanimous  verdict  of  a  jury,  of  good  and  lawful 
men,  in  open  court,  as  heretofore  used. 


DECLARATION   OF  RIGHTS.  W 

Sect.  10.  That  excessive  bail  should  not  be  required,  nor  Kaii,  fines, 

n  ■  ^  ,  ,  .    ,  .        !in'l  punish- 

excessive  fines  imposed,  nor  cruel  nor  unusual  punishments  m-  ments,  to  be 

flicted.  reasonable. 

Sect.  11.   That  general  warrants,  whereby  any  officer  or  General  war- 
messenger  may  be  commanded  to   search  suspected  places,  lien.^ 
without  evidence  of  the  fact  committed,  or  to  seize  any  person 
or   persons    not   named,    whose    offence    is    not    particularly 
described  and  supported  by  evidence,  are  dangerous  to  liberty, 
and  ought  not  to  be  granted. 

Sect.  12.  That  no  freeman  ought  to  be  taken,  imprisoned,  ^°"^  ^^  '"^  ^^• 

J-        •       J       r  !  •      <■       1      1  1    1-,         ■  .    .,  prived  of  liber- 

or  disseized,  oi  his  ireehold,  liberties,  or  privileges,  or  outlawed  ty  or  property, 
or  exiled,  or  in  any  manner  destroyed  or  deprived  of  his  life,  of  tu/iaud. '™ 
liberty,  or  property,  but  by  the  law  of  the  land. 

Sect.  13.  That  every  freeman  restrained  of  his  liberty,  is  Habeas  cor- 
entitled  to  a  remedy  to  inquire  into  the  lawfulness  thereof,  ''"^' 
and  to  remove  the  same  if  unlawful,  and  that  such  remedy 
ought  not  to  be  denied  or  delayed. 

Sect.  14.  That  in  all  controversies  at  law,  respecting  prop-  Jut  trial  in 

4.        ,1  ..  ,  .,.,,.  .  „r  civil  causes. 

erty,  the  ancient  mode  of  trial  by  jury  is  one  of  the  best 
securities  of  the  rights  of  the  people,  and  ought  to  remain 
sacred  and  inviolable. 

Sect.  15.  That  the  freedom  of  the  press  is  one  of  the  great  Freedom  of  the 
bulwarks   of  liberty,  and,  therefore,   ought   never  to   be  re-  restrained. 
strained. 

Sect.  16.   That  the  people  of  this  State  ought  not  to  be  Taxes  not  to  be 

,j  ji-j,,i  ,.  .  .  imposed  but  by 

taxed  or  made  subject  to  the  payment  of  any  impost  or  duty  General  As- 
without  the  consent  of  themselves  or  their  representatives  in  ^*^™  '''' 
General  Assembly,  freely  given. 

Sect.  17.  That  the  people  have  a  right  to  bear  arms  for  the  H'giit  to  bear 
defence   of  the    State;    and,   as   standing  armies  in  time    of  Standing  ar- 
peace,  are  dangerous  to  liberty,  they  ought  not  to  be  kept  up  ;  kept  up'  *°  ^^ 
and  that  the  military  should  be  kept  under  strict  subordination  sSordLte  to"" 
to,  and  governed  by,  the  civil  power.  <=ivii. 

Sect.  18.  That  the  people  have  a  right  to  assemble  too-ether,  instruction, 

o  '  rjo-lit  of. 

to  consult  for  their  common  good,  to  instruct  their  representa-    ° 
tives,  and  to  apply  to  the  legislature,  for  redress  of  grievances. 

Sect.  19.  That  all  men  have  a  natural  and  unalienable  right  Keiig'ous  ^or- 
to  worship  Almighty  God  according  to  the  dictates  of  their  ^  '"'' "° 
own  consciences. 

Sect.  20.  That  for  redress  of  grievances,  and  for  amending  Elections  to  be 
and  strengthening  the  laws,  elections  ought  to  be  often  held.     ""^'"'"'' 


10 


DECLARATION    OF   EIGHTS. 


Fumlamental         Sect.  21.  That  a  frequent  recurrence  to  fundamental  princi- 

principles  to  be     ,.,,,  ,  jiii*  fi-ii 

often  recurred   ples  IS  absolutely  necessary  to  preserve  the  biessmgs  ot  liberty. 
Hereditary  Sect.    22.    That  no    hereditary  emoluments,   privileges,  or 

foAiddfn.'  '"'■'  honors,  ought  to  be  granted  or  conferred  in  this  State. 
Perpetuities,         Sect.  23.  That  perpetuities  and  monopolies  are  contrary  to 
etc.,  forbidden.  .  ^       ^        J     ,  i  .  .        ^\     ^         n  i 

the  genuis  of  a  free  fetate,  and  ought  not  to  be  allowed. 

i^vs^forbidden  ^^^1-  24.  That  retrospective  laws,  punishing  facts  commit- 
ted before  the  existence  of  such  laws,  and  by  them  only 
declared  criminal,  are  oppressive,  unjust,  and  incompatible 
with  liberty,  wherefore,  no  ex  post  facto  law  ought  to  be 
made. 

Limits  of  tiie  Sect.  25.  The  property  of  the  soil  in  a  free  government, 
being  one  of  the  essential  rights  of  the  collective  body  of  the 
people,  it  is  necessary,  in  order  to  avoid  future  disputes,  that 
the  limits  of  the  State  should  be  ascertained  with  precision ; 
and  as  the  former  temporary  line  between  North  and  South 
Carolina  was  confirmed  and  extended  by  commissioners 
appointed  by  the  legislatures  of  the  two  States,  agreeable 
to  the  order  of  the  late  King  George  the  Second,  in  council, 
that  line,  and  that  only,  should  be  esteemed  the  southern 
boundary  of  this  State,  as  follows :  that  is  to  say,  beginning 
on  the  sea-side,  at  a  cedar  stake,  at  or  near  the  mouth  of 
Little  River,  being  the  southern  extremity  of  Brunswick 
county,  and  running  from  thence,  a  north-west  course  through 
the  boundary  house,  which  stands  in  thirty-three  degrees  fifty- 
six  minutes,  to  thirty-five  degrees  north  latitude;  and  from 
thence  a  west  course,  so  far  as  is  mentioned  in  the  charter  of 
King  Charles  the  Second,  to  the  late  proprietors  of  Carolina. 
Therefore,  all  the  territories,  seas,  water,  and  harbors,  with 
their  appurtenances,  lying  between  the  line  above  described, 
and  the  southern  line  of  the  State  of  Virginia,  which  begins 
on  the  sea-shore  in  thirty-six  degrees  thirty  minutes  north 
latitude,  and  from  thence  runs  west,  agreeable  to  said  charter 

Territory  held  of  ^ms  Charles,  are  the  right  and  property  of  the  people  of 

lu  sovereignty.  °  '  ^      .  .  j.-    i    i- 

this  State,  to  be  held  by  them  ni  sovereignty,  any  partial  line 

without  the  consent  of  the  legislature  of  this  State,  at  any 

time  thereafter  directed  or  laid  out,  in  anywise  notwithstand- 

Savingthe        ;„„_     Provided  always,  That  this  declaration  of  right  sliall  not 

riglits  of  In-  "  *'    '  •       ■  u 

dians.  prejudge  any  nation  or  nations  of  Indians,  from  enjoying  such 

hunting-grounds,  as   may  have    been,  or    hereafter  shall  be 
secured  to  them  by  any  former  or  future  legislature  of  this 


DECLARATION   OF   RIGHTS. 


11 


State.     And  provided  also,  That  it  shall  not  be  construed  so  Other  govem- 
as  to  prevent  the  establishment  of  one  or  more  governments  established^ 
westward  of  this  State,  by  consent  of  the  legislature.     And  ^^''' 
provided  further,  That  nothing  herein  contained,  shall  affect 
the  titles  or  possessions  of  individuals,  holding  or  claiming,  Present  titles 
under  the  laws  heretofore  in  force,  or  grants  heretofore  made 
by  the  late   King  George  the  Third,  or  his  predecessors,  or  the 
late  lords  proprietors,  or  any  of  them. 

December  the  seventeenth  day,  Anno  Dom.  one  ) 

thousand  seven  hundred  and  seventy-six,  read  >   R,     CAS^'^ELL,    PveS. 
the  third  time  and  ratitied  in  open  Congress.    J 

James  Gkeen,  Jun.,  Secretary. 


NOTE. 

Sect.  7.  11  Ire.  51.3;  7  lb.  22.5. 

Sect.  12.  §  76,  c.  107,  of  tlie  Revised  Code,  is  not  prohiljited  by  the  Declaration  of 
Rights  or  the  Constitution,  State  v.  Manuel,  4  D.  &  B.  20.  The  legislature  cannot  take 
away  a  vested  right,  Hoke  v.  Henderson,  i  Dev.  1;  see  also  13  Ire.  75;  University  v. 
Foy,  1  Mur.  58;  Same  v.  Maultsby,  8  Ire.  Eq.  257;  1  Ire.  414;  nor  suspend  the  collection 
of  debts,  1  Car.  L.  R.  385;  but  it  may  consolidate  otSces,  10  Ire.  377,  or  alter  remedies, 
1  Mur.  500;  10  Ire.  543.  It  may  pass  laws  regulating  the  exercise  of  rights  for  the 
benefit  of  society,  4  D.  &  B.  319;  2  lb.  555;  2  Ire.  66. 

Sect.  14.  2  Jones,  66;  2  D.  &  B.  451;  3  Dev.  478;  2  Hawks,  204;  3  lb.  590;  N.  C.  T. 
R.  158. 

Sect.  23.  2  Jones,  66;  2D.  &  B.  451;  2  Hawks,  10;  1  lb.  96;  2  Mur.  266. 

Sect.  24.  1  Hawks,  384;  3  Mur.  327. 


CONSTITUTION  OF  NORTH  CAROLINA. 


The  Constitution  or  Form  of  Government,  agreed  to  and  re- 
solved upon  by  the  Representatives  of  the  Freemen  of  the 
State  of  North  Carolina,  elected  and  chosen  for  that  particu- 
lar purpose,  in  Congress  assembled,  at  Halifax,  the  eighteenth 
day  of  December,  in  the  year  of  our  Lord,  one  thousand  seven 
hundred  and  seventy-six. 

Allegiance  and      'WiiEREAS  allesfiance  and  protection  are  in  their  nature  re- 

protection  be-  ^  ^ 

lus  reciprocal,  ciprocal,  and  the  one  should  of  right  be  refused  when  the 

other  is  withdrawn.     And  whereas  George  the  Third,  King  of 

and  Great        Great  Britain,  and  late   sovereign  of  the  British   American 

Britain  having        ,.,,  ,  ■  ,    ■,  r  n  i-  ..• 

withdrawn  her  colonies  hath  not  Only  withdrawn  irom  them  his  protection, 
waged  war'^on   but  by  an  act  of  the  British  legislature  declared  the  inhabi- 
the^colonies,     ^^^^^   ^^  ^j^^g^   States  out  of  the    protection    of  the  British 
crown,  and  all  their  property  found  upon  the  high  seas  liable 
to  be  seized  and  confiscated  to  the  uses  mentioned  in  the  said 
act.     And  the  said  George  the  Third  has  also  sent  fleets  and 
armies  to  prosecute  a  cruel  war  against  them,  for  the  purpose 
of  reducing  the  inhabitants  of  the  said  colonies  to  a  state  of 
abject  slavery.     In  consequence  whereof  all  government  under 
the  said  king  within  the  said  colonies,  hath  ceased,  and  a  total 
dissolution  of  government  in  many  of  them  hath  taken  place. 
And  whereas  the  continental  congress  having  considered  the 
they  are  ab-     premises,  and  other  previous  violations  of  the  rights  of  the 
letiauce."™  "^"  good   people   of  America,  have  therefore   declared   that  the 
Thirteen  United  Colonies  are,  of  right,  wholly  absolved  from 
all  allegiance  to  the  British  crown,  or  any  other  foreign  juris- 
diction whatsoever,  and  that  the  said  colonies  now  are  and 
forever  shall  be,  free  and  independent  States :  Wherefore,  in 


STATE    CONSTITUTION.  13 

our  present  state,  in  order  to  prevent  anarchy  and  confusion,  it  Wiicrcfore 
becomes  necessary  that  a  government  should  be  established  anarehy"the 
in  this  State :  Therefore,  We,  the  representatives  of  the  free-  NoXcrroiina 
men  of  North  Carolina,  chosen  and  assembled  in  congi-ess  for  °t^iJt"oil °°°" 
the  express  purpose  of  framing  a  constitution,  under  the  au- 
thority of  the  people,  most  conducive  to  their  happiness  and 
prosperity,  do  declare  that  a  government  for  this  State  shall  be 
established  in  manner  and  form  following,  to  wit : 

Sect.  1.  That  the  legislative  authority  shall  be  vested  in  two  Legislative  au- 
distinct  branches,  both  dependent  on  the  people,  to  wit :  a  inTw^  ^"^''^'^ 
senate  and  house  of  commons.  branches. 

Sect.  2.  That  the  senate  shall  be  composed  of  representa-  Senate. 
tives  [^annually']  chosen  by  ballot,  one  from  each   [^couniij']  in 
this  State.* 

Sect.  3.  That  the  bouse  of  commons  shall  be  composed  of  House  of  com- 
representatives    [annua/li/']    chosen    by    ballot,   [too  for  each  "'°"^' 
count!/,  and  one  for  each  of  the  towns  of  Edenton,  Newbern, 
Wilmington,  Salisbury,  Hillsborough,  and  Halifax.'] 

Sect.  4.  That  the  senate  and  house  of  commons,  assembled  ^™«"  <=°"- 
for  the  purpose  of  legislation,  shall  be  denominated  the  General  nated 'thrc™- 

Assembly.  eral  Assembly. 

Sect.  5.  That  each  member  of  the  senate  shall  have  usually  Qaaiificiition 
resided  in  the  [county]  in  which  he  is  chosen,  for  one  year  im-  of  Ste"^ 
mediately  preceding  his  election ;  and  for  the  same  time  shall 
have  possessed,  and  continue  to  possess,  in  the  [comity]  which 
he  represents,  not  less  than  three  hundred  acres  of  land  in  fee. 

Sect.  6.  That  each  member  of  the  house  of  commons  shall  of  members  of 
have  usually  resided  in  the  county  in  which  he  is  chosen,  for  mons. 
one   year   immediately   preceding   bis    election,    and    for    six 
months  shall  have  possessed,  and  continue  to  possess,  in  the 
county  which  he  represents,  not  less  than  one  hundred  acres 
of  land  in  fee,  or  for  the  term  of  his  own  life. 

Sect.  7.  That  all  [freemen]  of  the  age  of  twentv-one  vears.  Of  voters  for 

,,  ,  ....  „  "  •'  J'  senators. 

Who  have  been  inhabitants  of  any  one  [county]  within  the 
State  twelve  months  immediately  preceding  the  day  of  any 
election,  and  possessed  of  a  freehold  within  the  same  [county,] 
of  fifty  acres  of  land  for  six  months  next  before  and  at  the  day 
of  election,  shall  be  entitled  to  vote  for  a  member  of  the 
senate. 

•  Those  sections  of  the  constitntion  in  which  material  amendments  have  been  made 
are  printed  in  italics  between  brackets. 


14 


STATE    CONSTITUTION. 


Of  members  of  Sect.  8.  That  all  \_frecmen']  of  the  age  of  twenty-one  years, 
mons.  who  have  been  inhabitants  of  any  [^coini/i/'j  witiiin  this  State 

twelve  months  immediately  preceding  the  day  of  any  election, 
and  shall  have  paid  public  taxes,  shall  be  entitled  to  vote  for 
members  of  the  house  of  commons  for  the  county  in  which  he 
resides. 
Of  voters  for         [Sect.  9.   T/uit  all  persoiis  possessed  of  a  freehold  in  any 

nicmljers  from  ■        ,  •      ci  i        •  •     i         r 

Towns.  toion  in  tins  Nale,  having  a  rigid  of  representation,  and  also  all 

freemen  ivho  have  been  inhabitants  of  antj  such  town  twelve 
months  next  before  and  at  the  day  of  election,  and  shall  have 
paid  public  taxes,  shall  be  entitled  to  vote  for  a  member  to  rep- 
resent such  town  in  the  house  of  commons.  Provided  always, 
That  this  section  shall  not  entitle  any  inhabitant  of  such  totcn  to 
vote  for  members  of  the  house  of  commons  for  the  county  in 
which  he  may  reside,  nor  any  freeholder  in  such  county,  ivho 
resides  tvithout  or  beyond  the  limits  of  such  toivn,  to  vote  for  a 
member  for  said  town.'\ 

Each  House  to       Sect.  10.  That  the   senate   and  house   of  commons  when 

choose  Its  offi- 
cers; met,   shall  each  have  power  to  choose  a   speaker  and  other 

qualifications    theii"  officers,  be  judges  of  the  qualifications  and  elections  of 

adjou'rnr'pre-'  their  members,  sit  upon  their  own  adjournments  from  day  to 

Fssife  write  of    *^^y'  ^"*^  prepare   bills   to  be   passed   into  laws.      The  two 

election;  houses  shall  direct  writs  of  elections  for  supplving  intcrmc- 

jonitly  to  ad-  .    .  i  i    ,       o 

journ,  when,     diate  vacancies,  and  shall  also  jointly,  by  ballot,  adjourn  them- 
selves to  any  future  day  and  place. 
Bills  to  be  read      Sect.  11.   That  all  bills  shall  be  read  three  times  in  each 
each  House       house  before  they  pass  into  laws,  and  be  signed  by  the  speaker 

and  signed  by       c  \     iu  i 

the  speaker.        of  both  hoUSes. 

Members  and  Sect.  12.  That  cvery  person  who  shall  be  chosen  a  member 
oatii  of  oiHce  of  the  senate  or  house  of  commons,  or  appointed  to  any  otlice 
State" '  **        o""  place  of  trust,  before  taking  his  scat  or  entering  u))on  the 

execution  of  his  office,  shall  take  an  oath  to  the  State ;  and 

all  officers  shall  also  take  an  oath  of  office. 
.Tuiiins  .ap-  Sect.  13.  That  the  General  Assembly  shall,  by  joint  ballot 

'oencrai  Is-  of  both  houses,  appoint  judges  of  tlie  supreme  courts  of  law 
commif'sr<"ied  ^""^  equity,  judges  of  admiralty,  \_and  attorney-general,']  who 
bv  (invcrnor     yhall  be  commissioned  by  the  governor,  and  hold  their  offices 

ouniig  good  ■'  D  ' 

beliavior.         during  good  behavior. 

General  As-  [Sect.  14.   That  the  senate  and  house  of  commons  shall  have 

pohit  officc'rsof poller  to  appoint  the  generals  and  field-ofpcers  of  the  militia, 

miiitia.  ^i^^^^i  ^^ji  Qjjic^fg  of  the  regular  army  of  this  State.] 

Two  Houses         Sect.  15.  [T//«/  the  senate  and  house  of  commons  jointly,  at 

jointly  to  elect 
Governor. 


STATE   CONSTITUTION.  '  15 

their  first  mpeting  after  each  annual  eletiion,  shall  bij  ballot  elect 
a  governor  for  one  year,  ivho  shall  not  be  eligible  to  that  office 
longer  than  three  years  in  six  successive  years ;]  That  no  per-  His  quaiifica- 
soii  under  thirty  years  of  age,  and  who  has  not  been  a  resident  ''°"^' 
in  this  State  above  five  years,  and  having  in  the  State  a  free- 
hold in  lands  and  tenements  above  the  value  of  one  thousand 
pounds,  shall  be  eligible  as  governor. 

Sect.  16.   That  the  senate  and  house  of  commons  jointly,  siiali  elect  sev- 
at  Iheir  first  meeting  after  each  [cmnual]  election,  shall  by  bal-  comlseiioS  of 
lot  elect  seven  persons  to  be  a  council  of  State  for  [one  year],  ^^^'^' 
who  shall  advise  the  governor  in  the  execution  of  his  office ; 
and  that  four  members  shall  be  a  quorum ;  their  advice  and  Their  duty. 
proceedings  shall  be  entered  in  a  journal  to  be  kept  for  that  To  keep  n  jour- 
purpose  only,  and   signed  by  the   members   present ;  to  any  ceediugr' '""' 
part  of  which  any  member  present  may  enter  his  dissent ;  and 
such  journal  shall  be  laid  before  the  General  Assembly  when 
called  for  by  them. 

Sect.  17.  That  there  shall  be  a  seal  of  this  State,  which  Greatseaitobe 
shall  be  kept  by  the  governor,  and  used  by  him  as  occasion  erifor  amfaffix- 
may  require,  and  shall  be  called  the  great  seal  of  the  State  anfrcmnmis- 
of  North  Carolina,  and  be  affixed  to  all  grants  and  commis-  ^'''"^'  ^'"^• 
sions.  ^ 

Sect.  18.  That  the  governor  for  the  time  being,  shall  be  Governor  to  be 
captain-general  and  commander-in-chief  of  the  militia ;  and  in  cWeroTmu'i't'ia. 
the  recess  of  the  General  Assembly,  shall  have  power,  by  and 
with  the  advice  of  the  council  of  State,  to  embody  the  militia 
for  the  public  safety. 

Sect.  19.  That  the  governor  for  the  time  being,  shall  have  His  powers  and 
power  to  draw  for  and  apply  such  sums  of  money  as  shall  be 
voted  by  the  General  Assembly  for  the  contingencies  of  gov- 
ernment, and  be  accountable  to  them  for  the  same ;  he  also 
may,  by  and  with  the  advice  of  the  council  of  State,  lay  em- 
bargoes, or  prohibit  the  exportation  of  any  commodity,  for 
any  term,  not  exceeding  thirty  days  at  any  one  time,  in  the 
recess  of  the  General  Assembly,  and  shall  have  the  power  of 
granting  pardons  and  reprieves,  except  where  the  prosecution 
shall  be  carried  on  by  the  General  Assembly,  or  the  law  shall 
otherwise  direct;  in  which  case,  he  may,  in  the  recess,  grant 
a  reprieve  until  the  next  sitting  of  the  General  Assembly;  and 
may  exercise  all  the  other  executive  powers  of  government, 
limited  and  restrained  as  by  this  constitution  is  mentioned, 
and  according  to  the  laws  of  the  State ;  and  on  his  death. 


16 


STATE    CONSTITUTION. 


Ill  case  of  va-    inability,  or  absence  from  the  State,  the  speaker  of  the  senate 

caiicy,  who  to  "^  i-  i  •      i        i      • 

fill  tlie  office,  for  the  time  being,  and  in  case  of  his  death,  inability,  or  ab- 
sence from  the  State,  the  speaker  of  the  house  of  commons 
shall  exercise  the  powers  of  the  governor,  after  such  death,  or 
during  such  absence  or  inability  of  the  governor,  or  speaker  of 
the  senate,  [or  nalil  a  neiv  nomination  is  made  by  the  General 
Assemblij.'] 
Vacancies,  Sect.  20.  That  in  every  case  where  any  otFicer,  the  right 

of  General  As-  of  whose  appointment  is,  by  this  constitution,  vested  in  the 
officeiCfined  bv  General  Assembly,  shall,  during  their  recess,  die,  or  his  office 
Ii*i'*^,';'°''>'' '°     by  other  means  become  vacant,  the  governor  shall  have  power, 

be  filled  by  -'  .  . 

governor  and  with  the  advice  of  the  council  of  State,  to  lill  up  such  vacancy 
council.  .  .     .  1  •   1       1     1 1  • 

by  granting  a  temporary  commission,  which  shall  expire  at 

the  end  of  the  next  session  of  the  General  Assembly. 

Governor,  Sect.  21.    That  the  governor,  judges  of  the  supreme  courts 

torney-generai,  of  law  and  equity,  judges  of  admiralty,  and  attorney-general, 

ries."^"  ^^^'   shall  have  adequate  salaries  during  their  continuance  in  office. 

Treasurer  ap-        Sbct.  22.    That  the  General  Assembly  .shall,  by  joint  ballot 

General  id-      of  both  houses,  [flWMJ/a////]  appoint  a  treasurer  or  treasurers  for 

sembly.  ^jjjg  gtj^j.g_ 

Governor  and        Sect.  23.    That  the  governor  and   other  officers   oflfending 

other  officers  .  "  /•     ,  •  .        • 

impeachable  or  against  the  State,  by  Violating  any  part  of  this  constitution, 

corruption,  etc.  maladministration,  or  corruption,  may  be  prosecuted  on  the 

impeachment  of  the  General  Assembly,  or  presentment  of  the 

grand-jury  of  any  court  of  supreme  jurisdiction  in  this  State. 

Secretary  of         Sect.  24.    That  the  General  Assembly  shall,  by  joint  ballot 

state  appoint-  -'  ^     j    j 

ed  by  General   of  both  houses,  [iriennialli/l  appoint  a  secretary  for  this  State. 

AssetnblV'  j      i  i  •■ 

Defaulting  re-        Sect.  25.    That    no  persons   who   heretofore   have   been   or 
lie  money  in  el-  hereafter  may  be,  receivers  of  the  public  moneys,  shall  have  a 
erai' Assembly.  ®^^*  i"  either  house  of  General  Assembly,  or  be  eligible  to  any 
office   in   this    State,  until   such   person   shall   have   fully  ac- 
counted for  and  paid  into  the  treasury,  all  sums  for  which  they 
may  be  accountable  and  liable. 
Public  ticas-         Sect.  26.    That  no  treasurer  shall  have  a  scat  in  cither  the 
or  in  default'    sciiatc,  housc  of  commoiis,  or  council  of  State,  during  his  con- 
Gen'laiAs-      tinuance  in  that  office,  or  before  he  shall  have  finally  settled 
sembly.  j^jg  accounts  with  the  public,  for  all  moneys  which  may  be  in 

his   hands,   at  the   expiration   of  his  office,   belonging  to  the 
State,  and  hath  )iaid  the  same  into  the  hands  of  the  succeed- 
ing treasurer. 
Officers  of  ar-      Sect.  27.    That  no  officer  in  the  regular  army  or  navy,  in  the 
Uiiitcd  States,   scrvlce  and  pay  of  the   United   States,  of  this  or  any  other 


STATE   CONSTITUTION.  17 

State,  or  any  contractor  or  agent  for  supplying  such  army  or  iiml  nscnt^!  to 
navy  with  clothing  or  provisions,  shall  have  a  seat  in  either  the  army'or  imvy, 
senate,  house  of  commons,  or  council  of  State,  or  be  eligible  Merifber^,  etc., 
thereto ;  and  any  member  of  the  senate,  house  of  commons,  or  p^acrs't'fva-"^" 
council  of  State,  being  appointed  to  and  accepting  of  such  cate  their  sen's, 
office,  shall  thereby  vacate  his  seat. 

Sect.  28.    That  no  member  of  the  council  of  State  shall  have  Counsellor  of 
a  seat  either  in  the  senate  or  house  of  commons.  bie.  ° 

Sect.  29.  That  no  judge   of  the  supreme  court  of  law  or  Judges  ineiigi- 
equity,  or  judge  of  admiralty,  shall  have  a  seat  in  the  senate,  the'  council, 
house  of  commons,  or  council  of  State. 

Sect.  30.  That  no  secretary  of  this  State,  attorney-general,  Sec.  of  state, 
or  clerk  of  any  court  of  record,  shall  have  a  seat  in  the  senate,  clerks'of  courts 

V  r  •!      c  cii    i  inelieihle,  nor 

house  ot  commons,  or  council  of  State.  to  be  of  the 

Sect.  31.  That  no  clergyman,  or  preacher  of  the  gospel,  of  c°e,"|j'.men,  ex- 
any  denomination,   shall  be   capable  of  being  a  member  of  f ■<='*'""  ?■>.«- 

^  *'  '  ^  toral  functions 

either  the  senate,  house  of  commons,  or  council  of  State,  while  inel  gibie,  nor 

1  ,-  •      i.1  •  r    1  I    .-  •  to  be  of  the 

he  contmues  in  the  exercise  of  the  pastoral  function.  council. 

Sect.  32.  That  no  person  who  shall  deny  the  being  of  God,  Atheists,  infi- 

'  •'  "  dels,  and  per- 

or  the  truth  of  the  \_Protest.ant]  religion,  or  the  divine  author-  sons  with  reiig- 
ity  either  of  the  Old  or  New  Testament,  or  who  shall  hold  dangerous' to'^° 
religious  principles,  incompatible  with  the  freedom  and  safety  fij®  stat'e°'etts 
of  the  State,  shall  be  capable  of  holding  any  office  or  place  of  ^gjJ^'^^^'J.  ''''°"' 
trust  or  profit  in  the  civil  department,  within  this  State. 

Sect.  33.  That  the  justices  of  the  peace,  within  the  respec-  Justices  of  the 

,         r  peace  — 

tive  counties  in  this   State,  shall  in  future   be   recommended  mode  of  .ap- 
to  the  governor  for  the  time  being  by  the  representatives  in  To  hold  office 
General  Assembly,  and  the  governor  shall  commission  them  behavior?" 
accordingly :  And  the  justices,  when  so  commissioned,  shall 
hold  their    offices    during   good    behavior,   and    shall    not  be 
removed  from  office  by  the  General  Assembly  unless  for  mis- 
behavior, absence,  or  inability. 

Sect.  34.   That  there  shall  be  no  establishment  of  any  one  No  religious 
religious  church  or  denomination  in  this  State  in  preference  to   ° '     ° 
any  other ;  neither  shall  any  person,  on  any  pretence  whatso- 
ever, be  compelled  to  attend  any  place  of  worship,  contrary  to 
his  own  faith  or  judgment ;  nor  be  obliged  to  pay  for  the  pur- 
chase of  any  glebe,  or  the  building  of  any  house  of  worship,  or 
for  the  maintenance  of  any  minister  or  ministry,  conti-ary  to 
what  he  believes   right,  or   has  voluntarily  and  personally  en- 
gaged to  perform  ;  but  all  persons  shall  be  at  liberty  to  exer-  ah  may  u«e 
cise    their   own    mode    of   worship:    Provided,    that   nothing  of'^'o^rshi™'"'* 
2* 


18  STATE   CONSTITDTION. 

herein  contained  shall   be   construed  to  exempt  preachers  of 
treasonable  or  seditious  discourses  from  legal  trial  and  punish- 
ment. 
Lucrative  Sect.  35.   That  no  person  in  the  State  shall  hold  more  than 

to^briieiTat'"'  O"^  lucrative  ofiice  at  any  one  time.     Provided,  That  no  ap- 
timebyone      pointment  in  the   militia  or  to   the  office  of  a  iustice  of  the 

person.  ^  _  ■' 

peace,  shall  be  considered  as  a  lucrative  ofiice. 
Commissions,         Sect.  36.  That  all  commissions  and  grants  shall  run  in  the 
write^'to  run  in  name  of  the  State  of  North  Carolina,  and   bear  test  and  be 
srt'"of''N  rU  signed  by  the  governor.     All  writs  shall  run  in  the  same  man- 
Carolina;         jjej.,  and  bear  test  and  be  signed  by  the  clerks  of  the  respective 

how  signed.  '  .  •  i 

courts;    indictments   shall   conclude,    against   the    peace    and 
dignity  of  the  State. 
Delegates  to  Sect.  37.  That  the  delegates  for  this   State  to  the  conti- 

Cougress.'^^      nental  congress,  while  necessary,  shall  be  chosen  annually  by 
the  General  Assembly,  by  ballot,  but  may  be  superseded  in 
the  mean  time,  in   the  same  manner;  and  no  person  shall  be 
elected  to  serve  in  that  capacity  for  more  than  three  years  suc- 
cessively. 
Sheriff,  coro-         Sect.  38.  That  ther.e  shall  be  a  sheriff,  coroner  or  coroners, 
"tables foreach  ^^^  constables,  in  each  county  within  this  State. 
L"p™to'r'not  to         Sect.  39.   That  the  person  of  a  debtor,  where  there  is  not  a 
i.e  imprisoned   strong  presuniptioD  of  fraud,  shall  uot  be  continued  in  prison 

unless,  etc.  "   '  '  in,. 

I'risoners  bail-  after  delivering  up,  bona  Jide,  all  his  estate,  real  and  personal, 
etc'  '      for  the  use  of  his  creditors,  in  such  manner  as  shall  be  here- 

after regulated  by  law.     All  prisoners  shall  be  bailable  by  suf- 
ficient sureties,  unless  for  capital  offences,  when  the  proof  is 
evident,  or  presumption  great. 
Foreigners  set-      Sect.  40.   That  every  foreigner,  who  comes  to  settle  in  this 
in"^iie"oath  of  State,  having  first  taken  an  oath  of  allegiance  to  the  same, 
h'w  i"'T  '"'^  "^^y  purchase,  or  by  other  just  means  acquire,  hold,  and  trans- 
fer land  or  other  real  estate ;  and  after  one  year's  residence, 
shall  be  deemed  a  free  citizen. 
Cheap  schools        Sect.  41.  That  a  school  or  schools  shall  be  established  by 
irshoVand'one  ^^e  legislature  for  the  convenient  instruction   of  youth,  with 
ormoreuni-      g^^jj  salaries  to  the  iTiasters,  paid  by  the  public,  as  may  enable 

versities.  '  '  ■'  '  . 

them  to  instruct  at  low  prices;  and  all  useful  learning  shall  be 

duly  encouraged  and  promoted  in  one  or  more  universities. 
Purchase  of         Sect.  43.  That  no  purchase  of  lands  shall  be  made  of  the 

Indian  natives,  but  on  behalf  of  the  public,  by  authority  of  the 

General  Assembly. 
Entails  in  per-       Sect.  43.   That  the  future  legislature  of  this   State   shall 

petuity,  forbid- 
den. 


lands  from  In- 
dians, pro- 
hibited. 


STATE   CONSTITUTION. 


19 


regulate   entails    in    such  a  manner  as  to   prevent  perpetui- 
ties. 

Sect.  44.  That  the  declaration  of  rights  is  hereby  declared  Declaration  of 
to  be  part  of  the  constitution  of  this  State,  and  ought  never  of  tiie  cousUtu- 
to  be  violated  on  any  pretence  whatever. 

Sect.  45.  That  any  member  of  either  house  of  the  General  Members  of 

A  111111  iM  T  f  General  As- 

Assembly    shall    have    liberty   to    dissent   from,    and    protest  sembiy  may 
against  any  act  or  resolve  which  he  may  think  injurious  to  record.  ° 
the  public  or  any  individual,  and  have  the  reasons  of  his  dis- 
sent entered  on  the  journals. 

Sect.  46.  That  neither  house  of  the  General  Assembly  shall  ^'either  house 

.  •'to  transact 

proceed  upon  pubhc  business,   unless  a  majority   of  all  the  business  with 
members  of  such  house  are  actually  present;  and  that  upon  a  jority  of  ail  tiie 
motion  made  and  seconded,  the  yeas  and  nays  upon  any  ques-  veS'a'nd  navs 
tion  shall  be  taken  and  entered  on  the  journals;  and  that  the  "'">!''', '•'^- 

J  '  manded,  on  a 

journals   of  the   proceedings  of  both  houses  of  the  General  second. 

,  111111-11  Journals  to  be 

Assembly,  shall  be  printed  and  made  public,  immediately  after  printed. 
their  adjournment. 

This  constitution  is  not  intended  to  preclude  the  present 
congress  from  making  a  temporary  provision  for  the  well 
ordering  of  this  State,  until  the  General  Assembly  shall 
establish  government  agreeable  to  the  mode  herein  before  pre- 
scribed. 

December  the  eighteenth,  one  thousand  seven  ) 
liundred  and  sevjiuty-six,  read  the  third  time  [•         R.    CASWELL,  PreS. 
and  ratified  in  open  congress.  I 

Jaimes  Gheen,  Jun.,  Secretary. 


Amendments  proposed  by  a  Convention  of  Delegates  of  the  Peo- 
ple of  North  Carolina  on  the  eleventh  of  July,  1835,  and  rati- 
fied by  the  People  on  the  second  Monday  of  November,  in  the 
same  year. 

Whereas  the  General  Assembly  of  North  Carolina,  by  an  Preamble  re- 
act, passed  the  sixth  day  of  January,  one  thousand  eight  hun-  d'm'kv'hy""' 
dred  and  thirty-five,  entitled  "  An  Act  concerning  a  convention  "e'li'tio,!  was™ 
to  amend  the  constitution  of  the  State,"  and  by  an  act,  sup- r,-'"'"""'""'^" 

,  '  J  T        f    tlic  constitu- 

plcmental  thereto,  passed  on  the  eighth  day  of  January,  one  ''«"• 
thousand  eight  hundred  and  thirty-five,  did  dhect  that  polls 


^^  STATE   CONSTITUTION. 

should  be  opened  in  every  election  precinct  throughout  the 
State,  for  the  purpose  of  ascertaining  whether  it  was  the  will 
of  the  freemen  of  North  Carolina  that  there  should  be  a  con- 
vention of  delegates,  to  consider  of  certain  amendments  pro- 
posed to  be  made  in  the  constitution  of  said  State  ;  and  did 
further  direct,  that  if  a  majority  of  all  the  votes  polled  by  the 
freemen  of  North  Carolina  should  be  in  favor  of  holding  such 
convention,  the  governor  should,  by  proclamation,  announce 
the  fact,  and  thereupon  the  freemen  aforesaid  should  elect 
delegates  to  meet  in  convention  at  the  city  of  Raleigh,  on  the 
first  Thursday  in  June,  one  thousand  eight  hundred  and  thirty- 
five,  to  consider  of  the  said  amendments :  And  whereas  a  ma- 
jority of  the  freemen  of  North  Carolina  did,  by  their  votes  at 
the  polls  so  opened,  declare  their  will  that  a  convention  should 
be  had  to  consider  of  the  amendments  proposed,  and  the  gov- 
ernor did,  by  proclamation,  announce  the  fact  that  their  will 
had  been  so  declared,  and  an  election  for  delegates  to  meet  in 
Assembiert       convention  as  aforesaid  was  accordingly  had:  Now,  therefore, 

first  Ihursclay  °  •'  ' 

of  June,  1835:  ^ve,  the  delegates  of  the  good  people  of  North  Carolina,  hav- 

Adjounied  °  °  '^'.  /--ni-i  inx 

eie'veatii  July,  ing  assembled  in  convention  at  the  city  of  Kaleigh,  on  the  nrst 
Thursday  in  June,  one  thousand  eight  hundred  and  thirty-five, 
and  having  continued  in  session  from  day  to  day,  until  the 
eleventh  of  July,  one  thousand  eight  hundred  and  thirty-five, 
for  the  more  deliberate  consideration  of  said  amendments,  do 
now  submit  to  the  determination  of  all  the  qualified  voters  of 
the  State,  the  following  amendments  in  the  constitution  there- 
of, that  is  to  say:  — 


ARTICLE    I. 


Senate  to  con-  CLAUSE  1.  The  senate  of  this  State  shall  consist  of  fifty 
menihers;  representatives,  biennially  chosen  by  ballot,  and  to  be  elected 
elected  Kv  dis-  by  districts ;  which  districts  shall  be  laid  ofl'  by  the  General 
to/ off"every  Assembly,  at  its  first  session  after  the  year  one  thousand  eight 
twenty  years    jjundred  and  fortv-one ;  and  afterwards,  at  its  first  session  after 

on  the  basis  of  j  '  ' 

public  taxation,  the  year  one  thousand  eight  hundred  and  fifty-one  ;  and  then 
every  twenty  years  thereafter,  in  proportion  to  the  public  taxes 
paid  into  the  treasury  of  the  State  by  the  citizens  thereof;  and 
the  average  of  the  public  taxes  paid  by  each  county  into  the 
treasury  of  the  State,  for  the  five  years  preceding  the  laying 


STATE    CONSTITUTION. 


21 


off  of  the  districts,  shall  be  considered  as  its  proportion  of  the 
public  taxes,  and  constitute  the  basis  of   apportionment:  Pro- No  county  to 
vided.  That  no  county  shall  be  divided  in  the  formation  of  a  ' 

senatorial  district.  And  when  there  are  one  or  more  counties, 
having  an  excess  of  taxation  above  the  ratio  to  form  a  sena- 
torial district,  adjoining  a  county  or  counties  deficient  in  such 
ratio,  the  excess  or  excesses  aforesaid  shall  be  added  to  the 
taxation  of  the  county  or  counties  deficient;  and  if,  with  such 
addition,  the  county  or  counties  receiving  it  shall  have  the 
requisite  ratio,  such  county  and  counties  each  shall  constitute 
a  senatorial  district. 

Cl.  2.    The   house  of  commons  shall  be  composed  of  one  House  cf  com- 
hundred  and  twenty  representatives,  biennially  chosen  by  bal-  of  one  hundred 
lot,  to  be  elected  by  counties  according  to  their  federal  popula-  memb™"'^ 
tion,  that  is,  according  to  their  respective  numbers,  which  shall  Wenniaiiy 

.  _   '  °  '^  '  elected  by 

be  determined  by  adding  to  the  whole  number  of  free  persons,  counties,  on 

•      1     J-  1  ,  ,  .         ^  <.  'the  basis  of 

includmg   those    bound    to   service  for  a  term   of  years,  and  federal  popula- 
excluding  Indians  not  taxed,  three  fifths  of  all  other  persons ; 
and  each  county  shall  have  at  least  one  member  in  the  house 
of  commons,  although  it  may  not  contain  the  requisite  ratio  of 
population. 

Cl.  3.  This  appointment  shall  be  made  by  the  General  Apportionment 
Assembly,  at  the  respective  times  and  periods  when  the  dis-  when  made', 
tricts  for  the  senate  are  hereinbefore  directed  to  be  laid  off; 
and  the  said  apportionment  shall  be  made  according  to  an 
enumeration  to  be  ordered  by  the  General  Assembly,  or 
according  to  the  census  which  may  be  taken  by  order  of  con- 
gress, next  preceding  the  period  of  making  such  apportion- 
ment. 

Cl.  4.    In  making  the  apportionment  in  the  house  of  com-  Ratio  of  repre 
mons,   the    ratio    of    representation    shall   be    ascertained   by  How  .as"" 
dividing  the  amount  of  federal  population  of  the  State,  after  ''""^'i- 
deducting  that  comprehended  within  those  counties  which  do 
not  severally  contain  the  one  hundred  and  twentieth  part  of 
the  entire  federal  population  aforesaid,  by  the  number  of  repre- 
sentatives less  than  the  number  assigned  to  the  said  counties. 
To  each  county  containing  the  said  ratio,  and  not  twice  the 
said  ratio,  there  shall  be  assigned  one  representative ;  to  each 
county  containing  twice,  but  not  three  times  the  said  ratio, 
there  shall  be  assigned  two  representatives,  and  so  on  progres- 
sively, and  then  the  remaining  representatives  shall  be  assigned 
severally  to  the  counties  having  the  largest  fractions. 


■  ascer- 


22 


STATE    CONSTITUTION. 


SECTION    II. 


How  senate  to  Cl.  1.  Until  the  first  session  of  the  General  Assembly  which 
untTfireTW  shall  be  had  after  the  year  eighteen  hundred  and  forty-one,  the 
sion  after  1841.  gg^g^^g  shall  be  composed  of  members  to  be  elected  from  the 
several  districts  hereinafter  named,  that  is  to  say,  the  1st  dis- 
trict shall  consist  of  the  counties  of  Perquimons  and  Pas- 
quotank ;  the  2d  district,  of  Camden  and  Currituck ;  the  3d 
district,  of  Gates  and  Chowan  ;  the  4th  district,  Washington 
and  Tyrrell;  the  5th  district,  Northampton;  the  6th  district, 
Hertford;  the  7th  district,  Bertie;  the  8th  district,  Martin; 
the  9th  district,  Halifax;  the  10th  district,  Nash;  the  11th 
district,  Wake;  the  12th  district,  Franklin;  the  13th  district, 
Johnson ;  the  14th  district,  Warren ;  the  15th  district,  Edg- 
ccmbe ;  the  16th  district,  Wayne ;  the  17th  district,  Greene  and 
Lenoir;  the  18th  district,  Pitt;  the  19th  district,  Beaufort  and 
Hyde ;  the  20th  district,  Carteret  and  Jones ;  the  21st  district, 
Craven;  the  22d  district,  Chatham;  the  23d  district,  Gran- 
ville ;  the  24th  district,  Person  ;  the  25th  district,  Cumberland ; 
the  26th  district,  Sampson;  the  27th  district.  New  Hanover; 
the  28th  district,  Duplin ;  the  29th  district,  Onslow ;  the  30th 
district,  Brunswick,  Bladen,  and  Columbus ;  the  31st  district, 
Robeson  and  Richmond;  the  32d  district,  Anson;  the  33d 
district,  Cabarrus ;  the  34th  district,  Moore  and  Montgomery ; 
the  35th  district,  Caswell;  the  36th  district,  Rockingham;  the 
37th  district,  Orange;  the  38th  district,  Randolph;  the  39th 
district,  Guilford;  the  40th  district,  Stokes;  the  41st  district, 
Rowan ;  the  42d  district,  Davidson ;  the  43d  district,  Surry ; 
the  44th  district,  Wilkes  and  Ashe ;  the  45th  district,  Burke 
and  Yancy;  the  46th  district,  Lincoln;  the  47th  district, 
Iredell ;  the  48th  district,  Rutherford ;  the  49th  district.  Bun- 
combe, Haywood,  and  Macon  ;  and  the  50th  district,  Mecklen- 
burg ;  each  district  to  be  entitled  to  one  senator. 
How  house  of  Cl.  2.  Until  the  first  session  of  the  General  Assembly  after 
composed  tui  ^  the  year  eighteen  hundred  and  forty-one,  the  house  of  com- 
then.  mons  shall  be  composed  of  members  elected  from  the  coun- 

ties in  the  following  manner,  viz. :  The  counties  of  Lincoln 
■&nd  Orange  shall  elect  four  members  each.  Tiie  counties  of 
Burke,  Chatham,  Granville,  Guilford,  Halifax,  Iredell,  Meck- 
lenburg, Rowan,  Rutherford,  Surry,  Stokes,  and  Wake  shall 
elect  three  members  each.     The  counties  of  Anson,  Beaufort, 


STATE    CONSTITUTION.  23 

Bertie,  Buncombe,  Cumberland,  Craven,  Caswell,  Davidson, 
Duplin,  Edgcombe,  Franklin,  Johnston,  Montgomery,  New- 
Hanover,  Northampton,  Person,  Pitt,  Randolph,  Robeson, 
Richmond,  Rockingham,  Sampson,  Warren,  Wayne,  and 
Wilkes  shall  elect  two  members  each.  The  counties  of  Ashe, 
Bladen,  Brunswick,  Camden,  Columbus,  Chowan,  Currituck, 
Carteret,  Cabarrus,  Gates,  Greene,  Haywood,  Hertford,  Hyde, 
Jones,  Lenoir,  Macon,  Moore,  Martin,  Nash,  Onslow,  Pasquo- 
tank, Perquimons,  Tyrrell,  Washington,  and  Yancy  shall  elect 
one  member  each. 


SECTION   III. 

Cl.  1.    Each  member  of  the  senate  shall  have  usually  re-  QiifUfieation 
sided  in  the  district  for  which  he  is  chosen  for  one  year  imme- 
diately preceding  his   election,   and  for  the   same  time  shall 
have  possessed  and  continue  to  possess  in  the  district  which 
he  represents  not  less  than  three  hundred  acres  of  land  in  fee. 

Cl.  2.  All  free  men  of  the  age  of  twenty-one  years,  (except  Of  voters  for 
as  is  hereinafter  declared,)  who  have  been  inhabitants  of  any 
one  district  within  the  State  twelve  months  immediately  pre- 
ceding the  day  of  any  election,  and  possessed  of  a  freehold 
within  the  same  district  of  fifty  acres  of  land  for  six  months 
next  before  and  at  the  day  of  election,  shall  be  entitled  to  vote 
for  a  member  of  the  senate. 

Cl.  3.    No  free  negro,  free  mulatto,  or  free  person  of  mixed  Free  persons  of 
blood,  descended  from  negro  ancestors  to  the  fourth  genera-  vote7n- dera- 
tion inclusive,  (though  one  ancestor  of  each  generation  may  house!' "'"''" 
have  been  a  white  person,)  shall  vote  for  members  of  the  sen- 
ate or  house  of  commons. 


SECTION   IV. 

Cl.  1.  In  the  election  of  all  officers  whose  appointment  is  In  elections  of 
conferred  on  the  General  Assembly  by  the  constitution,  the  eraiTssombry 
vote  shall  be  viva  voce.  '°  ■'■°'®  "'"" 

voce. 

Cl.  2.    The   General  Assembly  shall  have  power  to  pass  Mm-  regulate 
laws  regulaling  the  mode  of  appointing  and  removing  militia  'mi^Svai'Sf 

oificers.  militia  officers. 

Cl.  3.    The  General   Assembly  shall  have  power  to  pass  Jiny  pass  laws 
general  laws  regulating  divorce  and  alimony,  but  shall  not  slnlii'Mlt  g™"' 
have  power  to  grant  a  divorce  or  secure  alimony  in  any  indi- '"™''-''-'''  ''''=• 
vidual  case.  \ 


24  STATE   CONSTITUTION. 

Shall  not  alter  Cl.  4.  The  General  Assembly  shall  not  have  power  to  pass 
gitSe°bas-"  any  private  law,  to  alter  the  name  of  any  person,  or  to  legiti- 
may 'p.^slau"'  mate  any  persons  not  born  in  lawful  wedlock,  or  to  restore  to 
for  the  pur-      ^[^g  rights  of  citizenship  any  person  convicted  of  an  infamous 

crime ;  but  shall  have  power  to  pass  general  laws  regulating 

the  same. 
Nor  pass  pri-         Cl.  5.    The  General  Assembly  shall  not  pass  any  private 
onnotTce'of"    law,  unless  it  shall  be  made  to  appear  that  thirty  days'  notice 
thirty  days.      ^^  apjillcation  to  pass  such  law  shall  have  been  given,  under 

such  directions  and  in  such  manner  as  shall  be  provided  by 

law. 
Tacancies  in         Cl.  6.    If  vacancies    shall   occur  by   death,  resignation,   or 
Eemm'ing  Otherwise,  before  the  meeting  of  the  General  Assembly,  writs 
how  fiuTd.'^'     may  be  issued  by  the  governor,  under  such  regulations  as  may 

be  prescribed  by  law. 
Sessions  bien-        Cl.  7.    The  General  Assembly  shall  meet  biennially,  and 
secretory  of"  °  at  each  biennial  session  shall  elect,  by  joint  vote  of  the  two 
ui-er/anr'"     houscs,  a  secretary  of  State,  treasurer,  and  council  of  State, 
council.  ^jjQ  gj^^^  continue  in  office  for  the  term  of  two  years. 


ARTICLE    II. 

Governor,  how      Clacse  1.    The  governor  shall  be  chosen  by  the  qualified 

voters  for  the  members  of  the  house  of  commons,  at  such 

time  and  places  as  members  of  the  General  Assembly  are 

elected. 

Term  of  office;      Cl.  2.    He  shall  hold  his  office  for  the  term  of  two  years 

wjnineigi-    ^^^^  ^^^  ^.^^^^  ^^  ^^.^  installation,  and  until  another  shall  be 

elected  and  qualified ;  but  he  shall  not  be  eligible  more  than 

four  years  in  any  term  of  six  years. 

Ketanisofhis        c^.  3.    l"he  returns  of  every  election  for  governor  shall  be 

m?adero'pencd,  sealed  up  and  transmitted  to  the  seat  of  government,  by  the 

andpubhshed.  j.g^^^j.,^i,jg  officers,  directed  to  the  speaker  of  the  senate,  who 

shall  open  and  publish  them  in  the  presence  of  a  majority  of 

the  members  of  both  houses  of  the  General  Assembly.     The 

How  elected  m  person  having  the  highest  number  of  votes,  shall  be  governor; 

vSe  between    but  if  two  or  more  shall  be  equal  and  highest  in  vt^fes,  one  of 

'^^°'  them  shall  be  chosen  governor  by  joint  vote  of  butii  houses  of 

the  General  Assembly. 
Elections  con-       Qj^  4_    Contested  elections  for  governor  shall  be  determined 

tested,  how  de  ,     ,       ^  i     »  i  i        •  i. 

tcrinined.         by  both  houses  of  the  General  Assembly,  m  such  manner  as 
shall  be  prescribed  by  law. 


STATE    CONSTITUTION.  25 

Cl.  5.    The  governor  elect  shall  enter  on  the  duties  of  the  To  enter  on 
office  on  the  first  day  of  January  next  after  his  election,  having  day^of  jlnul 
previously  taken  the  oaths  of  office  in  presence  of  the  members  7;  ^"V''^  *''?' 

-,,,,,  r     1       ^  "  taken  the  oaths 

ot  both  branches  of  the  General  Assembly,  or  before  the  chief  »''°ffi'=e. 
justice  of  the  supreme  court,  who,  in  case  the  governor  elect 
should  be  prevented  from  attendance  before  the  General  As- 
sembly, by  sickness  or  other  unavoidable  cause,  is  authorized 
to  administer  the  same. 


ARTICLE    III. 

SECTION   I. 

Clause  1.    The  governor,  judges  of  the  supreme  court,  and  Governor  and 
judges  of  the  superior  courts,  and  all  other  officers  of  this  State,  maybf  ?m- 
(except  justices  of  the  peace  and  militia  officers,)  may  be  im-  P^"'=''«<1- 
peached  for  wilfully  violating  any  article  of  the  constitution, 
maladministration,  or  corruption. 

Cl.  2.   Judgment,  in  cases  of  impeachment,  shall  not  extend  How  punished 
further  than  to  removal  from  office  and  disqualification  to  hold  ™<=°°"''"°°- 
and  enjoy  any  office  of  honor,  trust,  or  profit  under  this  State ; 
but  the  party  convicted  may,  nevertheless,  be  liable  to  indict- 
ment, trial,  judgment,  and  punishment  according  to  law. 

Cl.  3.    The  house  of  commons  shall  have  the  sole  power  of  House  of  com- 
impeachment.     The  senate  shall  have  the  sole  power  to  try  "each- 'and  the 
all  impeachments;  no  person   shall   be  convicted   upon   any  t^^"""''*'''^ 
impeachment,  unless  two-thirds  of  the  senators  present  shall 
concur  in   such   conviction ;  and  before  the  trial  of  any  im- 
peachment, the  members  of  the  senate  shall  take  an  oath  or  Mode  of  trial. 
affirmation    truly  and   impartially   to   try  and  determine  the 
charge  in  question  according  to  evidence. 

SECTION    IL 

Cl.  1.    Any  judge  of  the  supreme  court,  or  of  the  superior  Jt^iges  may  be 
courts,  may  be  removed  from   office   for  mental   or  physical  Gm.erd' As^- 
inability,  upon  a  concurrent  resolution  of  two  thirds  of  both  m"m'';i  o? 
branches  of  the  General  Assembly.     The  judge,  against  whom  {^^"^  '""■ 
the  legislature  may  be  about  to  proceed,  shall  receive  notice 
thereof,  accompanied  by  a  copy  of  the  causes  alleged  for  his 
removal,  at  least  twenty  days  before  the  day  on  which  either 
branch  of  the  General  Assembly  shall  act  thereon. 
3 


26  STATE    CONSTITUTION. 

Their  salaries  Cl.  2.  The  salaries  of  the  judges  of  the  supreme  court,  or 
minilhed';  ''''  of  the  superior  courts,  shall  not  be  diminished  during  their 
while  in  office,  continuance  in  office. 


SECTION    III. 
Office  of  jus-        Upon  the  conviction  of  any  justice  of  the  peace,  of  any  in- 
vacated  on       famous  crime,  or  of  corruption  and  malpractice  in  office,  the 
fXmous"  °^    commission  of  such  justice  shall  be  thereby  vacated,  and  he 
rupuVhi^of-    shall  be  forever  disqualified  from  holding  such  appointment. 
fice,  etc. 

SECTION    IV. 

Attorney-Gen-       The  General  Assembly  at  its  first  session  after  the  year  one 
elected  for  four  thousand  eight  hundred  and  thirty-nine,  and  from  time  to  time 
commissioned  thereafter,   shall  appoint   an   attorney-general,  who    shall    be 
by  governor,     commissioned  by  the  governor,  and  shall  hold  his  office  for  the 
term  of  four  years  ;  but  if  the  General  Assembly  should  here- 
after extend  the  term  during  which  solicitors  of  the  State  shall 
hold  their  offices,  then  they  shall  have  power  to   extend  the 
term  of  office  of  the  attorney-general  to  the  same  period. 


ARTICLE    IV. 


Convention  of       CLAUSE  1.   No  convention  of.  the  people  shall  be  called  by 
hoVcaii'ed.       the  General  Assembly,  unless  by  the  concurrence  of  two  thirds 

of  all  the  members  of  each  house  of  the  General  Assembly. 
Constitution,         Cl.  2.    No  part  of  the  constitution  of  this  State  shall  be 
altered,  unless  a  bill  to  alter  the   same  shall  have  been  read 
three  times  in  each  house  of  the  General  Assembly,  and  agreed 
to  by  three  fifths  of  the  whole  number  of  members  of  each 
house  respectively ;  nor  shall  any  alteration  take  place  until 
the  bill  so  agreed  to  shall  have  been  published  six  months  pre- 
vious to  a  new  election  of  members  to  the  General  Assembly. 
aXTaiA?''^  ^f' after  such  publication,  the  alteration  proposed  by  the  pre- 
sembiy.  ceding  General  Assembly,  shall  be  agreed  to  in  the  first  session 

thereafter  by  two  thirds  of  the  whole  representation  in  each 
house  of  the  General  Assembly,  after  the  same  shall  have  been 
read  three  times  on  three  several  days  in  each  house,  then  the 
said  General  Assembly  shall  prescribe  a  mode  by  which  the 


STATE   CONSTITUTION.  27 


amendment  or  amendments  may  be  submitted  to  the  quali- 
fied voters  of  the  house  of  commons  throughout  the  State  • 
and  if,  upon  comparing  the  votes  given  in  the  whole  State,  it  How  ratifie.i 
shall   appear  that   a    majority  of  the  voters    have    approved  ""^ '''*' P'"''''''- 
thereof,  then,  and  not  otherwise,  the  same  shall  become  a  part 
of  the  constitution. 


SECTION    11. 

The  thirty-second  section  of  the  constitution  shall  be  amend-  Religious  test 
ed  to  read  as  follows  :  No  person  who  shall  deny  the  being  of  ^°'  °^''^' 
God,  or  the  truth  of  the  Christian  religion,  or  the  divine  au- 
thority of  the  Old  or  New  Testament,  or  who  shall  hold  relig- 
ious principles  incompatible  with  the  freedom  or  safety  of  the 
State,  shall  be  capable  of  holding  any  office  or  place  of  trust 
or  profit  in  the  civil  department  within  this  State. 

SECTION   III. 

Cl.  1.    Capitation  tax  shall  be  equal  throughout  the  State  Capitation  tax 
upon  all  individuals  subject  to  the  same.  ^ '"'  *'*='"'''■ 

Cl.  2.    All  free  males  over  the  age  of  twenty-one  years,  and  Free  males 
under  the  age  of  forty-five  years,  and  all  slaves  over  the  age  of  "ilves^  bet"^een 
twelve  years,  and  under  the  age  of  fifty  years,  shall  be  subject  o?  age,""ubject 
to  capitation  tax,  and  no  other  person  shall  be  subject  to  such  to'i"«h  tax'' 
tax ;  provided  that  nothing  herein  contained  shall  prevent  ex- 
emptions of  taxable  polls  as  heretofore  prescribed  by  law  in 
cases  of  bodily  infirmity. 

SECTION   IV. 

No  person  who  shall  hold  any  office  or  place   of  trust  or  Who  disqnaii- 
profit  under  the  United  States,  or  any  department  thereof,  or  fice  under' tUs' 
under  this  State,  or  any  other  State  or  government,  shall  hold  fi'glbie  toCen- 
or  exercise  any  other  office  or  place  of  trust  or  profit  under  the  «''=^  Assembly. 
authority  of  this  State,  or  be  eligible  to  a  seat  in  either  house     ' 
of  the  General  Assembly :  Provided,  that  nothing  herein  con- 
tained shall  extend  to  officers  in  the  militia  or  justices  of  the 
peace. 

Ratified  in  convention,  this  eleventh  day  ) 

of  July   in  the  year  of  our  Lord,  one  '   NATH'L    MACON,  PreS. 
thousand  eight  hundred  and  thirty-five.  ) 

Edmund  B.  Freeman,  Secretary  of  the  Convention. 
Joseph  D.  Ward,  Assistant  Secretary. 


AN  ORDINANCE 


TO   CARRY  INTO  EFFECT  THE   AMENDED   CONSTITUTION. 


Amendments        Be  it  Ordained  and  declared,  by  the  delegates  to  this  Conven- 
submitte(rto°"  tiou,  in  Convention  assembled,  and  it  is  hereby  ordained  by  the 
the  people.       authority  of  the  Same,  That  the  amendments  to  the  constitu- 
tion of  this  State,  adopted  by  this  convention,  be  submitted  by 
the  governor  to  the  people,  on  the  second  Monday  in  Novem- 
ber next,  thirty  days  notice  having  been  given,  and  that  the 
Polls  to  be  kept  polls  be  Opened  by  the  respective  sheriffs,  and  kept  open  for 
day"  'imd'*       three  successive  days,  at  the  several  election  precincts  in  each 
results  certified  g,^(j  every  county  in  the  State,  under  the  same  rules  and  regu- 
lations, as  now  exist,  for  the  election  of  members  to  the  Gen- 
eral Assembly.     That  the  said  sheriffs  be  required  to  compare 
and  certify  the  results  of  the  elections,  on  or  before  the  Monday 
following,  and  transmit  the  same  in  twenty  days  thereafter,  to 
the  governor  of  the  State.     That  all  persons  qualified  to  vote 
for  members  of  the  house  of  commons,  may  vote  for  or  against 
The  vote,  how  a  ratification  of  the  amendments.     Those  who  wish  a  ratifica- 
tion of  the  amendments,  voting  with  a  printed  or  written  ticket, 
"  Ratification  "  —  those  of  a  contrary  opinion,  "  Rejection." 
Duplicate  Further,  That  it  shall  be  the  duty  of  the  sheriffs  to  make 

polls.  duplicate  statements  of  the  polls  in  their  respective  counties, 

sworn  to  before  the  clerk  of  the  county  court :  one  copy  of 
which  shall  be  deposited  in  said  clerk's  office,  and  the  other 
One  sent  to      copy  transmitted  to  the  governor  of  the  State,  at  Raleigh. 

governor.  V.      •  7    ■       j    i         i  i       •  /-     >  mi     x 

Be  it  further  ordained  by  the  authority  of  the  same,   inat 

when  the  returns  aforesaid  shall  have  been  received,  the  same 

To  be  opened    shall  be  opened  by  the  governor  in  the  presence  of  the  secre- 

nor.  tary  of  state  and  treasurer;  and  in  case  a  majority  of  the  votes 


If  ratified,  polled  shall  bc  in  favor  of  a  ratification  of  the  amendments,  the 
Fo  be'niade'by  samc  shall  bo  forthwith  made  known  by  a  proclamation  of  the 
governor.         governor  to  the  people  of  the  State.     And  thereupon,  the  gov- 


STATE   CONSTITUTION.  29 

ernor  shall  cause  to  be  indorsed  on  the  amendment,  as  enrolled  Ratification  to 
by  order  of  the  convention,  or  shall  annex  thereunto,  a  certifi-  d'e'lS"" 
cate  under  his  signature  declarinsr  that  the  said   amendments '"''"'^ ''■''f'''^- 

i  1  '  r     1    1         ^  ernor,  under 

have  been  ratihed  by  the  people  of  North  Carolina,  and  the  *«  R"'""'  »«=>'' 
secretary  of  State  shall  countersign  the  said  certificate,  and '"^' 
annex  thereto  the  great  seal  of  the  State,  and  the  said  amend- 
ments so  enrolled  with  the  certificate  aforesaid  shall  be  forever 
kept  among  the  archives  of  the  State  in  the  office  of  the  secre- 
tary aforesaid. 

Be  it  further  ordained  by  the  authoriti/  aforesaid,  That  the  Amendments 
amendments  thus  ratified  shall  take  effect,  and  be  in  force,  fi^rs'J Iflw 
from  and  after  the  first  day    of  January,  a.d.  one  thomsand  me.'^''' 
eight    hundred    and  thirty-six:    Provided,  however,  that   the 
governor,  the  council  of  State,  the  secretary  of  State,  and  the 
public  treasurer,  who  may  then  be  in  office,  shall  severally  con- 
tinue to  exercise  their  respective  functions  until  the  governor 
council  of  State,  secretary  of  State,  and  public  treasurer  ap- 
pointed under  the  amended  constitution,  shall  enter  upon  the 
duties  of  their  oflEice. 

Ratified  in  Convention,  this  eleventh  day  \ 
ofJuly  anno  Dom.  one  thousand  eights    NATH'L    MACON,    PreS 
hundred  and  thirty-five.  )  ,    ^  #  co. 

Edmund  B.  Fkeeman,  Secretary  of  the  Convention. 
Joseph  D.  Ward,  Assistant  Secretary. 


MOTE. 

Sect.  8.  Roberts  r.  Cannon,  4  D.  &  B.  256.     Opinion  of  judges,  App.  to  8  Ire.  Eq 
Rep. 
Sect.  40.  3  Ire.  141;  5  Ire.  Eq.  207;  4  Dev.  247;  3  Dev.  188. 

3* 


IJS^DEX 


CONSTITUTION  OF  NORTH  -  CAROLINA. 


DECLARATION   OF   EIGHTS. 

BEcnow 

Power  derived  from  the  people, 1 

Right  of  government  in  the  people, 2 

None  entitled  to  exclusive  privileges,  etc., 3 

Legislative  and  other  powers  to  be  kept  separate,         ....  4 

Suspension  of  laws  forbidden, ^ 

Elections  to  be  free, " 

Riirhts  of  accused  in  criminal  prosecutions, '' 

Mode  of  prosecution  prescribed,           . ° 

Jury  trial  in  criminal  prosecutions, " 

Bail,  fines,  and  punishments  to  be  reasonable, K' 

General  warrants  forbidden, ^^ 

Nbne  to  be  deprived  of  liberty  or  property,  but  by  the  law  of  the  land,  12 

Habeas  corpus,         .  ' 

Jury  trial  in  civil  causes,      . 

Freedom  of  the  press  not  to  be  restrained, 15 

Taxes  not  to  be  imposed,  except  by  General  Assembly,       .        .        .  IC 
Eight  to  bear  arms  —  Standiug  armies  not  to  be  kept  up  — Military 

power  subordinate  to  the  civil, 1' 

Instruction,  right  of, 

Religious  worship,  right  of, 

Elections  to  be  frequent, 20 

Fundamental  principles  to  be  often  recurred  to, 21 

Hereditary  privileges,  etc.,  forbidden, 22 

rerpetuities,  etc.,  forbidden, 23 

Ex  post  faclo  laws  forbidden, 24 

Limits  of  the  State  —  Territory  held  in  sovereignty  —  Saving  the  rights  of 
Indians — Other  governments  may  be  estaWishcd  west  —  Present 

titles  confirmed, 2J 


INDEX   TO    STATE    CONSTITUTION.  31 

CONSTITUTION. 

1.    LEGISLATIVE    DEPARTMENT. 


BECTION 


Legislative  authority  vested  in  two  branches, 1 

Senate, 2 

House  of  Commons,     ........            .        .  3 

■\Vhen  convened,  denominated  the  General  Assembly,          ...  4 

Qualification  of  members  of  Senate,        .         .         .         .         .         .         .  '    5 

"         of  members  of  House  of  Commons,          ....  6 

"          of  voters  for  senators, 7 

"          of  voters  for  members  of  House  of  Commons,          .         .  8 
"          of  voters  for  members  from  towns,       .....  9 
Each  house  to  choose  its  officers,  judge  of  the  qualification  of  its  mem- 
bers, adjourn,  prepare  bills,  issue  writs  of  election  — jointly  to  ad- 
journ, when, 10 

Bills  to  be  read  three  times  in  each  house,  and  signed  by  the  Speaker,  1 1 

Members  to  take  oath  of  office,  and  to  the  State, 12 

Judges  appointed  by  General  Assembly,  and  commissioned  by  the  gov- 
ernor during  good  behavior,      .         .         .         .         .         .         .         .13 

General  Assembly  to  appoint  officers  of  militia, 14 


2.    EXECUTIVE    DEPARTMENT. 

Two  Houses  jointly  to  elect  governor — His  qualifications,  .  .  .15 
Two  Houses  jointly  shall  elect  seven  persons,  counsellors  of  State,  —  their 

duty  to  keep  a  journal  of  their  proceedings, 16 

Great  seal  to  be  kept  by  the  governor,  and  affixed  to  grants,  commissions, 

etc., 17 

Governor  to  be  commander-in-chief  of  militia, 18 

His  powers  and  duties  —  In  case  of  vacancy,  who  to  fill  the  office,  .  .19 
Vacancies  during  recess  of  General  Assembly,  in  offices  filled  by  that 

body,  to  be  filled  by  governor  and  council, 20 

Governor,  judges,  and  attorney-general  to  have  salaries,       .         .         .  21 

Treasurer  appointed  by  the  General  Assembly, 22 

Governor  and  other  officers  impeachable  or  indictable  for  corruption,  etc.,  23 

Secretary  of  State  appointed  by  General  Assembly,     ....  24 

Defaulting  receivers  of  public  money  ineligible  to  General  Assembly,      .  25 

Public  Treasurer,  in  oflice  or  in  defiiult,  ineligible  to  Genertil  Assembly,  26 
Officers  of  the  Army  or  Navy  of  United  States,  and  Agents  to  supply  the 

Army  or  Navy,  ineligible;  members,  etc.,  accepting  such  places,  to 

vacate  their  seats,  etc., _  27 

Counsellor  of  State  ineligible, 28 

Judges  ineligible,  nor  to  be  of  the  Council, 29 

Secretary  of  State,  Attorney-General,  and  Clerks  of  Courts  ineligible, 

nor  to  bo  of  the  Council, .  30 

Clergymen,  exercising  pastoral  functions,  ineligible,  nor  to  be  of  the 

Council, 32 


32  INDEX   TO    STATE   CONSTITUTION. 

Atheists,  infidels,  and  persons  Tvith  religious  principles  dangerous  to  the 

freedom  of  the  State,  etc.,  excluded  from  office,        .        .        .        .32 


3.   MISCELLAXEOUS. 

Justices  of  the  Peace;  mode  of  appointment,  to  hold  office  during  good 

behavior, 33 

No  religious  establishment ;  all  may  use  their  own  mode  of  worship,         .  34 

Lucrative  offices,  two  not  to  be  held  at  a  time  by  one  person,       .         .  35 
Commissions,  grants,  and  writs  to  run  in  the  name  of  the  State  of  North 

Carolina  ;  how  signed,       .........  36 

Delegates  to  the  Continental  Congress, 37 

Sheriff,  coroner,  and  constables  for  each  county, 38 

Debtor  not  to  be  imprisoned  unless,  etc. ;  Prisoners  bailable  unless,  etc.,  39 
Foreigners,  settling  and  taking  the  oath  of  allegiance,  may  take  and  hold 

land, 40 

Cheap  schools  to  be  established,  and  one  or  more  Universities,     .        .  41 

Purchase  of  lands  from  Indians  prohibited, 42 

Entails  in  perpetuity  forbidden, 43 

Declaration  of  Rights  to  be  a  part  of  the  Constitution,      .         .         .         .44 

Members  of  the  General  Assembly  may  protest  of  record,    ...  45 
Neither  house  to  transact  business  with  less  than  a  majority  of  all  the 
members ;  yeas  and  nays  may  be  demanded  on  a  second ;  journals 

to  be  printed, 46 


AlVIENDMENTS. 

1.   LEGISLATIVE   DEPARTMENT. 

Art.  Sec.  CI. 
Senate  to  consist  of  fifty  members,  biennially  elected  by  districts,  to 
be  laid  off  every  two  years  on  the  basis  of  public  ta.\ation ; 

no  county  to  be  divided,  etc., Ill 

House  of  Commons  to  consist  of  onfe  hundred  and  twenty  members, 
biennially  elected  by  counties,  on  the  basis  of  federal  popu- 
lation,       112 

Apportionment  of  members,  when  made,     .         .         .         .         •         113 

Ratio  of  representation  ;  how  ascertained, 114 

How  Senate  to  be  composed  till  first  Session  after  1841,  .  .  12  1 
How  House  of  Commons  to  be  composed  till  then,  .        .        .12     2 

Qualification  of  Senators, 13     1 

"  of  voters  for  Senators, 13     2 

Free  persons  of  color  not  to  vote  for  members  of  either  house,  .  13  3 
In  election  of  officers.  General  Assembly  to  vote  t'U'a  voce,  .  .14  1 
General  Assembly  may  regulate  the  appointment  and  removal  of 

militia  officers, 142 

General  Assembly  may  pass  laws  to  regulate,  but  shall  not  grant 

divorces, 143 


INDEX   TO   STATE   CONSTITUTION. 

General  Assembly  shall  not  alter  names,  nor  legitimate  bastards, 

etc.,  but  may  pass  laws  for  that  purpose,       .        .        .         .         14    4 

The  General  Assembly  shall  not  pass  private  bills,  but  on  notice  of 

thirty  days, .         .         .         .145 

Vacancies  in  membership  before  the  meeting  of  General  Assem- 
bly, how  filled 145 

Sessions  biennial ;  election  of  Secretary  of  State,  Treasurer,  and 

Council, 147 


2.   EXECUTIVE   DEPARTMENT. 

Governor,  how  chosen, 2  1 

Term  of  office ;  when  ineligible, 2  2 

Returns  of  his  election,  how  made,  opened,  and  published ;  how 

elected  in  case  of  equal  vote  between  two,   ....  2  3 

Elections  contested,  how  determined, 2  4 

To  enter  on  duty  the  first  day  of  January,  having  first  taken  the 

oaths  of  office,     .........  2  5 


3.   JUDICIAL   DEPARTilENT. 

Governor  and  other  officers  may  l)e  impeached,      .        .        .        .311 

How  punished  on  conviction,       ......         .312 

The  House  of  Commons  shall  impeach,  and  the  senate  shall  try ; 

mode  of  trial, 313 

Judges  may  be  removed  by  the  General  Assembly  for  mental  or 

physical  incapability, ..321 

Their  salaries  not  to  be  diminished  while  in  office,  .         ,         .322 

Office  of  Justice  of  the  Peace  vacated  on  conviction  of  infamous 

crime  or  corruption  in  office,  etc.,         .....         3     8 
Attorney-General  to  be  elected  for  four  years  and  commissioned  by 

the  governor,  .........     3     4 


4.   inSCELLANEOUS. 

Convention  of  the  people,  how  called,  .....  4 

Constitution,  how  altered  ;  proceedings  by  the  General  Assembly ; 

how  ratified  by  the  people, 4 

Religious  test  for  office, 4 

Capitation  tax  to  be  equal, 4 

Free  males  over  twenty-one,  and  slaves  between  twelve  and  fifty 

years  of  age,  subject  to  such  tax, 4 

Who  disqualified  to  hold  office  under  this  State,  and  ineligible  to 

the  General  Assembly, 4 


CONSTITUTION 


THE    UNITED    STATES 


NORTH  CAROLINA. 

In  General  Assembly,  Nov.  20,  1788. 

Convention  ReSOLVED,    That  it   is   the  opinion  of  this  house,  a  new  con- 

recommended  .  '^  '  . 

to  consider  the  vention  be  reconimended,   for   the    purpose  of  reconsidering 
tution.  the  new  constitution  held  out  by  the  federal  convention  as  a 

government  for  the  United  States. 
Connties  and        Resolved,  That  it  be  recommended  to  such  of  the  inhabi- 

towns  recom-  ' 

mended  to  elect  tants  of  this   State  as  are  entitled  to  vote  for  members  of  the 

m  August,         If.  ,1  I     1  1  •  1 

1789,  delegates  house  of  commons,  at  the  annual  election  to  be  held  in  each 

the  proposed    county  on  the  third  Friday  and  Saturday  in  August  next,  to 

thTunu'ed"  °    '^^^^  ^^^  ^^^  persons  in  each  county,  and  one  person  in  each 

States.  borough-town  having  a  right  of  representation  agreeable  to  the 

constitution  of  this  State,  to  sit  as  a  State  convention,  for  the 

purpose   of  deliberating   and   determining   on   the    proposed 

federal  constitution  for  the  future  government  of  the  United 

States,  and  on  such  amendments,  if  any,  as  shall  or  may  be 

made  to  the  said  constitution  by  a  convention  of  the  States 

previous  to  the  meeting  of  the  said  convention  of  this  State  ; 

which  election  shall  be  conducted  agreeable  to  the  mode,  and 

conformable  to  the  rules  and  regulations  prescribed  by  law  for 

conducting  the  elections  of  members  of  the  General  Assembly : 

Citizens  free-    ^nd  every  citizen  within  this  State,  being  a  freeholder,  shall  be 

holders,  eligi-  •'  _,  . 

bie  to  the  con-  eligible  to  a  seat  in  the  said  Convention,  sheriffs  and  returning 

vention.  "  ,     , 

oihcers  excepted. 
notuv^the" pco-  Resolved,  That  the  sheriffs  of  the  counties  in  this  State,  do 
pie  of  the  eiec-  advertise  and  notify  the  people  of  their  counties  and  borough- 
towns,  of  the  time,  place,  and  purpose  of  holding  said  election, 
at  the  same  time,  and  in  the  same  manner,  as  the  law  re- 
quires them  to  advertise  elections  for  members  of  the  General 
Assembly. 


CONSTITUTION   OF   THE   UNITED    STATES.  35 


Resolved,  That  the  persons  so  elected  to  serve  in  a  State  Delegates  to 
convention,  do  assemble  and  meet  together  on  the  third  Mon-  No^nlfer," 
day  in  November,  at  such  place  as  shall  be  appointed  for  the  J,- cLtitution 
meeting  of  the  General  Assembly,  then  and  there  to  deliberate  ""^ "PP'oved,  to 
and  determine  on  the  said  constitution,  and  on  the  amend-  ratify""" 
ments,  if  any ;  and  if  approved  of  by  them,  to  confirm  and 
ratify  the   same   on   behalf  of  this    State,   and   make  report 
thereof  to  congress  and  to  the  General  Assembly. 

Resolved,  That  it  be  recommended  by  this  Assembly,  to  Also  to  con- 
the   convention  which   is  to  meet  on  the  thu-d   Monday  in  iMeviiL^orght 
November  to  reconsider  the  new  constitution,  that  they  also  ''emedlnThl 
consider  the  propriety  of  allowing  the  town  of  Fayetteville  a  f^^bT^  ^'' 
member  to  represent  the  said  town,  on  the  same  terms  with 
the  other  district  towns  in  this  State. 

ALEX.  MARTIN,  S.  S. 
JOHN  SITGREAVES,  S.  C. 


I  constitutiou. 


In  Convention,  Saturday,  Nov.  21,  17S9. 
Whereas  the  general  convention  which  met  in  Philadelphia, 
in  pursuance  of  a  recommendation  of  congress,  did  recommend 
to  the  citizens  of  the  United  States,  a  constitution  or  form  of 
government,  in  the  following  words,  namely :  — 

We,  the  people  of  the  United  States,  in  order  to  form  a  Objects  of  the 
more  perfect  Union,  establish  justice,  insure  domestic  tran- Ked " 
quillity,  provide  for  the  common  defence,  promote  the  general  th/frderfi''"" 
welfare,  and  secure  the  blessings  of  liberty  to  ourselves  and 
our  posterity,  do  ordain  and  establish  this  constitution  for  the 
United  States  of  America. 


ARTICLE   I. 

SECTION   I. 

All  legislative  powers  herein  granted  shall  be  vested  in  a  Legiaiative 
congress  of  the  United  States,  which  shall  consist  of  a  senate  fn  crg,;if' 
and  house  of  representatives. 

SECTION    II. 

The  house  of  representatives  shall  be  composed  of  members  Houseofrepre- 
chosen  every  second  year  by  the  people  of  the  several  States,  membeT;Ty '  ■ 


36 


CONSTITUTION   OF   THE   UNITED   STATES. 


whom  chosen;  and  the  electors  in  each  State  shall  have  the  qualifications 

qualifications  ....  .    ,  ,  i       ,.    i       <~i 

of  electors.       requisite  lor  electors  of  the  most  numerous  branch  of  the  State 

legislature. 
A  rfpresenta-       2.    No  person  shall  be  a  representative  who  shall  not  have 

tive  to  be  twen-  .        i  .  r  c 

ty-five;  seven  attained  to  the  age  of  twenty-nve  years,  and  been  seven  years 
of  the  Unite'd  °  a  citizen  of  the  United  States,  and  who  shall  not,  when 
Uihn^ltant'of'"  elected,  be  an  inhabitant  of  that  State  in  which  he  shall  be 

his  State  when  ghosen. 
elected. 

Kepresenta-  3.  Representatives  and   direct  taxes   shall   be    apportioned 

tobeappor-^     among  the  several  States  which  maybe  included  within  this 
kietcfnuxnbers.  Union,  according  to  their  respective  numbers,  which  shall  be 
determined  by  adding  to  the  ^vhole  number  of  free  persons, 
including  those  bound  to  service  for  a  term  of  years,  and  ex- 
cluding Indians  not  taxed,  three  fifths   of  all   other   persons. 
Aetna!  enu-      The  actual  enumeration  shall  be  made  within  three  years  after 
ten  years.         the  first  meeting  of  the  congress  of  the   United  States,  and 
within  every  subsequent  term  of  ten  years,  in  such  manner  as 
Limitation  of    they  shall  by  law  direct.     The  number  of  representatives  shall 
reseutation,       not  exceed  One  for  every  thirty  thousand,  but  each  State  shall 
^'"''  have  at  least  one  representative  ;  and  until  such  enumeration 

First  appor-  shall  bc  made,  the  State  of  New  Hampshire  shall  be  entitled 
rirp'rorentr-  to  choose  three,  Massachusetts  eight,  Rhode  Island  and  Provi- 
'"'^"  dence  Plantations  one,  Connecticut  five,  New  York  six.  New 

Jersey  four,  Pennsylvania  eight,  Delaware  one,  Maryland  six, 
Virginia  ten.  North   Carolina  five.   South   Carolina  five,  and 
Georgia  three. 
Writs  of  eiec-      4.    When  vacancies  happen  in  the  representation  from  any 
vacandes.  '°^  State,  the  executive  authority  thereof  shall  issue  writs  of  elec- 
tion to  fill  such  vacancies. 
House  of  rep-      5.    The  house  of  representatives  shall  choose  their  speaker 
choo"sc  Jpcakcr  and  other  officers ;  and  shall  have  the  sole  power  of  impeaeh- 

etc,  and  have  . 

power  of  im-      meilt. 
peachmeut. 

SECTION   III. 

tnntors,  how  1.  The  senate  of  the  United  States  shall  be  composed  of 
vc"!!  vile.''"  two  senators  from  each  State,  chosen  by  the  legislature  thereof, 
[See  art.  5.]  ^^  ^^^  years ;  and  each  senator  shall  have  one  vote. 
Senate  divided  2.  Immediately  after  they  shall  be  assembled  in  conse- 
csi**to"^bo'^chol  quence  of  the  first  election,  they  shall  be  divided  as  equally  as 
yaa^r^  ''™  may  be  into  three  classes.  The  seats  of  tiic  senators  of  the 
first  class  shall  be  vacated  at  the  expiration  of  the  second  year, 
of  the  second  class  at  the  expiration  of  the  fourth  year,  and  of 


CONSTITUTION    OF   THE   UNITED    STATES. 


37 


the  third  class  at  the  expiration  of  the  sixth  year,  so  that  one  Executives  of 

'  .  .  states  to  fill  va- 

third  may  be  chosen  every  second  year;  and  if  vacancies  hap-  cancies  in  the 
pen  by  resignation,  or  otherwise,   during  the   recess   of  the  taurcs°etc. 
legislature  of  any  State,  the  executive  thereof  may  make  tem- 
porary appointments  vmtil  the  next  meeting  of  the  legislature, 
which  shall  then  fill  such  vacancies. 

3.  No  person  shall  be  a  senator  who  shall  not  have  attained  A  senator  apred 

'  30;  lime  years 

to  the  age  of  thirty  years,  and  been  nine  years  a  citizen  of  the  n  citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  inhabi-  and  an  inhabi- 
tant of  that  State  for  which  he  shall  be  chosen.  '")|*,I',  cilol'ra.'^ 

4.  The  vice-president  of  the  United  States  shall  be  president  Vice-president 

to  be  president 

of  the  senate,  but  shall  have  no  vote,  unless  they  be  equally  ot"  the  senate; 

-,.    .J    J  to  vote  on  an 

divided.  equal  division 

5.  The  senate  shall  choose  their  other  officers,  and  also  a  ™j!e'sen:ite  to 
president  pro  tempore,  in  the  absence  of  the  vice-president,  or  "^•'oo"'  "'e"" 
when  he  shall  exercise  the  office  of  president  of  the  United  tempore,  etc. 
States. 

6.  The  senate  shall  have  the  sole  power  to  try  all  impeach-  The  senate 

-iiri  •     ■         ,.         1  1  .     11  .  1    liave  the  sole 

ments.      When  sitting  for  that  purpose,  they  shall  be  on  oath  power  to  try 
or  affirmation.     When  the  president  of  the  United  States  is  eto^'"^ '™  "  ' 
tried,  the  chief  justice  shall  preside  :  and  no  person  shall  be 
convicted  without  the  concurrence  of  two  thirds  of  the  mem- 
bers present. 

7.  Judgment   in  cases   of  impeachment    shall    not   extend  Extent  of  judg- 

f       ,  ,  I     ^  ,-,-  IT  1  •  r-        ■  nient  in  cases 

lurther  than  to   removal  irom   otiice,  and   disqualincation  to  of  impeacii- 
hold  and  enjoy  any  office  of  honor,  trust,  or  profit  under  the  p!,rty'i'"'tiier^ 
United  States:  but  the  party  convicted  shaU  nevertheless  be  [j||Ij'j^jg''|^y^j.' 
liable  and  subject  to  indictment,  trial,  judgment,  and  punish- 1'"^'- 
ment,  according  to  law. 

SECTION   IV. 

1.  The  times,  places,  and  manner  of  holding  elections  for  Time?,  etc.,  of 

'  '  '  °  holdiiis;  elec- 

senators  and  representatives,  shall  be  prescribed  in  each  State 

by  the  legislature  thereof;  but  the  congress  may  at  any  time 

by  law  make  or  alter  such  regulations,  except  as  to  the  places  thS'suves'or 

of  choosing  senators.  ^^  congress. 

2.  The  congi'ess  shall  assemble  at  least  once  in  every  year,  Congress  to  ns- 

°  •>   •>         '  semble  aiMiual- 

and  such  meeting  shall  be  on  the  first  Monday  in  December,  ly  the  first 
unless  they  shall  by  law  appoint  a  different  day.  iicccnrber,  un- 

A  loss,  etc. 


rs  and  repre 

lltntivCs 


38  CONSTITUTION   OF   THE   UNITED    STATES. 


Ench  house  1.  Each  house  shall  be  the  judge  of  the  election?,  returns, 

ik'c^Hon  nnd  and  qualifications  of  its  own  members,  and  a  majority  of  each 
offts^owir'  shall  constitute  a  quorum  to  do  business ;  but  a  smaller  num- 
"uovum^'  ber  may  adjourn  from  day  to  day,  and  may  be  authorized  to 
compel  the  attendance  of  absent  members,  in  such  manner, 
and  under  such  penalties  as  each  house  may  provide. 
Each  house  to  2.  Each  house  may  determine  the  rules  of  its  proceedings, 
niVes  nncTpun-  punish  its  members  for  disorderly  behavior,  and,  with  the  con- 
isiuts  mem-     ^.^^^^^,^^,3  ^f  ^^^o  thirds,  expel  a  member. 

Journals  of  3.  Each  house  shall  keep  a  journal  of  its  proceedings,  and 

Yeivs  nnd'mys  from  time  to  time  publish  the  same,  excepting  such  parts  as  may 
in  their  judgment  require  secrecy ;  and  the  yeas  and  nays  of 
the  members  of  either  house  on  any  question  shall,  at  the 
desire  of  one  fifth  of  those  present,  be  entered  on  the  journal. 
Adjournment  4.  Neither  house,  during  the  session  of  congress,  shall,  with- 
out the  consent  of  the  other,  adjourn  for  more  than  three 
days,  nor  to  any  other  place  than  that  in  which  the  two  houses 
shall  be  sitting. 


how  taken. 


of  both  houses. 


SECTION   VI. 


Senators  and         ^    The  senators  and  representatives  shall  receive  a  compen- 

representatives  *  -        i  i       1  1        ■  1         +. 

to  be  paid,  etc.,  sation  for  their  services,  to  be  ascertamed  by  law,  anci  paid  out 
arrost^not'tT  of  the  treasury  of  the  United  States.     They  shall  in  all  cases, 
forrbateTetc.  except  treason,  felony,  and  breach  of  the  peace,  be  privileged 
from  arrest  during  their  attendance  at  the  session  of  their  re- 
spective houses,  and  in  going  to  and  returning  from  the  same ; 
and  for  any  speech  or  debate  in  either  house,  they  shall  not  be 
questioned  in  any  other  place. 
Concerning  the      2.  No  senator  or  representative  shall,  during  the  time  for 
cetb':^se''natos"  which  he  was  elected,  be  appointed  to  any  civil  office  under 
t^ts?'""''"''^' the  authority  of  the  United   States,  which  shall  have  been 
created,  or  the  emoluments  whereof  shall  have  been  increased 
during  such  time ;  and  no  person  holding  any  office  under  the 
United  States,  shall  be  a  member  of  either  house  during  his 
continuance  in  office. 

SECTION    YII. 

Eevenuebill  1.  All  bills  for  raising  revenue  shall  originate  in  the  house 

^ifhSusfoV"  of  representatives  ;  but  the  senate  may  propose  or  concur  with 
tiyes^lT'       amendments  as  on  other  bills. 


ills 


CONSTITUTION   OF   THE   UNITED    STATES.  39 

2.  Every  bill  which  shall  have  passed  the  house  of  rejiresent-  Powers  of  tiie 
atives  and  the  senate,  shall,  before  it  become  a  law,  be  pre-  orc™gr'cf,''in 
sented  to  the  president  of  the  United  States ;  if  he  approve,  he  faws'^am/t'ife  "^ 
shall  sign  it,  but  if  not,  he  shall  return  it,  with  his  objections  fo™?  "f  pm- 

,      r^  ,  .  •>  ccetling on  hills 

to  that  house  in  which  it  shall  have  originated,  who  shall '"*at''espeet 
enter  the  objections  at  large  on  their  journal,  and  proceed  to 
reconsider  it.  If  after  such  reconsideration  two  thirds  of  that 
house  shall  agree  to  pass  the  bill,  it  shall  be  sent,  together  with 
the  objections,  to  the  other  house,  by  which  it  shall  likewise  be 
reconsidered,  and  if  approved  by  two  thirds  of  that  house,  it 
shall  become  a  law.  But  in  all  such  cases  the  votes  of  both 
houses  shall  be  determined  by  yeas  and  nays,  and  the  names 
of  the  persons  voting  for  and  against  the  bill  shall  be  entered 
on  the  journal  of  each  house  respectively.  If  any  bill  shall 
not  be  returned  by  the  president  within  ten  days  (Sundays  ex- 
cepted) after  it  shall  have  been  presented  to  him,  the  same 
shall  be  a  law,  in  like  manner  as  if  he  had  signed  it,  unless 
the  congress  by  their  adjournment  prevent  its  return,  in  which 
case  it  shall  not  be  a  law. 

3.    Every  order,  resolution,  or  vote,  to  which  the  concurrence  Joint  lesoia- 
of  the  senate  and  house  of  representatives  may  be  necessary,  for'l%ou?ni?' 
(except  on  a  question  of  adjournment)  shall  be  presented  to  the  Se'lmr' 
president  of  the  United  States ;  and  before  the  same  shall  take  ''  '' 

effect,  shall  be  approved  by  him,  or  being  disapproved  by  him, 
shall  be  repassed  by  two  thirds  of  the  senate  and  house  of 
representatives,  according  to  the  rules  and  limitations  pre- 
scribed in  the  case  of  a  bill. 

SECTION   VIII. 

1.  The  congress  shall  have  power  to  lay  and  collect  taxes,  Congress  shaU 
duties,  imposts,  and  excises,  to  pay  the  debts  and  provide  for  i.^To  lay  takes, 
the  common  defence  and  general  welfare  of  the  United  States;  '^"'' 

but  all  duties,  imposts,  and  excises  shall  be  uniform  through- 
out the  United  States  ; 

2.  To  borrow  money  on  the  credit  of  the  United  States;       2.  Borrow 

3.  To  regulate  commerce  with  foreign  nations,  and  among  3""Re|i'.iate 
the  several  States,  and  with  the  Indian  tribes  ;  commerce. 

4.  To  establish  an  uniform  rule  of  naturalization,  and  uni- *• ';**';^'''"''"'« 
form  laws    on    the    subject   of  bankruptcies    throughout   the  iz^ation'm.i""' 
United  States ;  ''''"'''"'"  '''"''• 

5.  To  coin  money,  regulate  the  value  thereof,  and  of  foreign  eto^ami"™"' 
coin,  and  fix  the  standard  of  weights  and  measures ;  meillurcs""' 


meat  to  receive 
sanc- 
tion as  bills. 


40 


CONSTITUTION   OF   THE   UNITED    STATES. 


couiiterfBiteis.  rities  and  current  coin  of  the  United  States ; 
post°offices,etc.      7.    To  establish  post-offices  and  post-roads ; 


11.  Raisfi 
mies,  etc. 


®-  ^.'■°\'<|f  *'<"■        6.    To  provide  for  the  punishment  of  counterfeiting  the  secu- 

couiiterfa: 
7.  Establii 
post  office 

rights?"'  8.    To  promote  the  progress  of  science  and  useful  arts,  by 

securing  for  limited  times  to  authors  and  inventors  the  exclu- 
sive right  to  their  respective  writings  and  discoveries ; 

hitllnfcrior"         ^-    ^°  constitute  tribunals  inferior  to  the  supreme  court ;  to 

tribunals,  etc.  define  and  punish  piracies  and  felonies  committed  on  the  high 
seas,  and  oflences  against  the  law  of  nations ; 

war.  etc.  "^"^ ''"^^  1^-  To  declare  war,  grant  letters  of  marque  and  reprisal, 
and  make  rules  concerning  captures  on  land  and  water ; 

11.  To  raise  and  support  armies,  but  no  appropriation 
of  money  to  that  use  shall  be  for  a  longer  term  than  two 
years ; 

nw^™"''"''         ^^-    To  provide  and  maintain  a  navy; 

13.  Make  rules      13.    To  make  rules  for  the  government  and  reoralation  of  the 

forai-myand      ,        ,  ,  ,    „  '^ 

navy.  laiiu  and  naval  forces  ; 

14.  Provide  for      14.    To  provide  for  calling  forth  the  militia  to  execute  the 

calling  forth  r      i        tt    • 

the  militia.  laws  of  the  Union,  suppress  insurrections,  and  repel  inva- 
sions ; 

15.  Provide  for      15.    To  provide  for  organizing,  arming,  and  disciplining  the 

organizing  the        .  '  "  "  °'  '  = 

mSitia,  etc.  militia,  and  for  governing  such  part  of  them  as  may  be  em- 
ployed in  the  service  of  the  United  States,  reserving  to  the 
States  respectively,  the  appointment  of  the  officers,  and  the 
authority  of  training  the  militia  according  to  the  discipline 
prescribed  by  congress ; 

16.  Exercise  16.    To  exercise  exclusive  legislation  in  all  cases  whatsoever, 

exclusive  juns-  .       .  . 

diction  over  a  over  such  district  (not  exceeding  ten  miles  square)  as  may,  by 
places  for  forts,  cession  of  particular  States,  and  the  acceptance  of  congress, 
become  the  seat  of  the  government  of  the  United  States,  and 
to  exercise  like  authority  over  all  places  purchased  by  the  con- 
sent of  the  legislature  of  the  State  in  which  the  same  shall  be, 
for  the  erection  of  forts,  magazines,  arsenals,  dock-yards,  and 
other  needful  buildings  ;  —  and, 

17.  Make  all  17.    To  make  all  laws  which  shall  be  necessary  and  proper 

laws  necessary  .         .  _  j  i       i 

to  the  execu-    for  carrying  into  execution  the  foregoinc:  powers,  and  all  other 

tion  of  their  ^     ,    ,         ,  .  .        .  .  ' 

powers.  powers  vested  by  this  constitution  in  the  government  of  the 

United  States,  or  in  any  department  or  officer  thereof 

SECTION    IX. 

Importation  of      1.    Thc  migration  or  importation  of  such  persons  as  any  of 

certain  persons    ,       „  .     . 

not  to  be  pro-   the  States  now  existing  shall  think  proper  to  admit,  shall  not 


CONSTITUTION    OF   THE   UNITED    STATES.  41 

be  prohibited  by  the  congress  prior  to  the  year  one  thousand  iiibited  until  af- 
eight  hundred  and  eight,  but  a  tax  or  duty  may  be  imposed  on  article's.]  ^^^^ 
such  importation,  not  exceeding  ten  dollars  for  each  person. 

2.  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  Habeas  corpus. 
suspended,  unless  when  in  cases  of  rebellion  or  invasion  the 

public  safety  may  require  it. 

3.  No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed.    No  bill  of  at- 

4.  No  capitation,  or  other  direct  tax  shall   be  laid,  unless  in  j^TfacTo  w. 
proportion  to  the  census  or  enumeration  hereinbefore  directed  fJcoKiiug'^to 
to  be  taken.  census. 

5.  No  tax  or  dnty  shall  be  laid  on  articles  exported  from  any  No  export 
State.     No  preference  shall  be  given  by  any  regulation  of  com-  eren^J  of  onf 
merce   or   revenue  to  the  ports   of  one    State   over  those  of  fther  in  com- 
another:  nor  shall  vessels  bound  to,  or  from,  one   State,  he"""""^- 
obliged  to  enter,  clear,  or  pay  duties  in  another. 

6.  No  money  shall  be  drawn  from  the  treasury,  but  in  con-  Public  moneys, 
sequence  of  appropriations  made  by  law ;  and  a  regular  state-  e^r  ''""'"'' 
ment  and  account  of  the  receipts  and  expenditures  of  all  public 

money  shall  be  published  from  time  to  time. 

7.  No  title  of  nobility  shall  be  granted  by  the  United  States :  No  titles  of  no- 
and  no  person  holding  any  office  of  profit  or  trust  under  them,  sS,' etc." '''^" 
shall,  without  the  consent  of  congress,  accept  of  any  present, 
emolument,  office,  or  title,   of  any  kind  whatever,  from  any 

king,  prince,  or  foreign  State. 

SECTION    X. 

1.  No  State  shall  enter  into  any  treaty,  alliance,  or  confed-  Restrictions  on 
eration;  grant  letters   of  marque   and  reprisal;   coin  money ;  the  Ss  1 
emit  bills  of  credit ;  make  any  thing  but  gold  and  silver  coin  '""''"'^'y- 

a  tender  in  payments  of  debts ;  pass  any  bill  of  attainder,  ex 
post  facto  law,  or  law  impairing  the  obligation  of  contracts,  or 
grant  any  title  of  nobility. 

2.  No  State  shall,  without  the  consent  of  the  congress,  lay  Po«'ers  which 
any  imposts  or  duties  on  imports  or  exports,  except  what  may  exercise  ™h° 
be  absolutely  necessary  for  executing  its  inspection  laws ;  and  tt""on-"°" 
the  net  produce  of  all  duties  and  imposts,  laid  by  any  State  s'"^''- 

on  imports  or  exports,  shall  be  for  the  use  of  the  treasury  of 
the  United  States ;  and  all  such  laws  shall  be  subject  to  the 
revision  and  control  of  the  congi-ess.  No  State  shall,  without 
the  consent  of  congress,  lay  any  duty  of  tonnage,  keep  troops, 
or  ships  of  war  in  time  of  peace,  enter  into  any  agreement  or 
4* 


42 


CONSTITCTION   OF   THE   UNITED    STATES. 

compact  with  another  State,  or  with  a  foreign  power,  or  en- 
gage in  war,  unless  actually  invaded,  or  in  such  imminent 
danger  as  will  not  admit  of  delay. 


ARTICLE    11. 


Executive  1.   The  executive  power  shall  be  vested  in  a  president  of  the 

in  a  president,  United  States  of  America.     He  shall  hold  his  office  during 

the  term   of  four  years,  and,  together  with  the  vice-president, 

chosen  for  the  same  term,  be  elected  as  follows :  — 

Electors  of  2.  Each  State  shall  appoint,  in  such  manner  as  the  legisla- 

president  and  *■  ' 

vice-president,  turc  thereof  may  direct,  a  number  of  electors,  equal  to  the 
whole  number  of  senators  and  representatives  to  which  the 
State  may  be  entitled  in  the  congress :  but  no  senator  or  repre- 
sentative, or  person  holdhig  an  office  of  trust  or  profit  under 
the  United  States,  shall  be  appointed  an  elector. 
Meeting  of  the  3.  The  electors  shall  meet  in  their  respective  States,  and 
president,  etc.  vote  by  ballot  for  two  persons,  of  whom  one  at  least  shall  not 
nnnuiied'bj^'tlie  ^^  ^'^  inhabitant  of  the  same  State  with  themselves.  And 
artU;leT2^'f  *'^^y  '^'^^'^  make  a  list  of  all  the  persons  voted  for,  and  of  the 
number  of  votes  for  each  ;  which  list  they  shall  sign  and  cer- 
tify, and  transmit  sealed  to  the  seat  of  the  government  of  the 
United  States,  directed  to  the  president  of  the  senate.  The 
president  of  the  senate  shall,  in  the  presence  of  the  senate  and 
house  of  representatives,  open  all  the  certificates,  and  the  votes 
shall  then  be  counted.  The  person  having  the  greatest  num- 
ber of  votes  shall  be  president,  if  such  number  be  a  majority 
of  the  whole  number  of  electors  appointed ;  and  if  there  be 
more  than  one  who  have  such  majority,  and  have  an  equal 
number  of  votes,  then  the  house  of  representatives  shall  im- 
mediately choose  by  ballot  one  of  them  for  president ;  and  if 
no  person  have  a  majority,  then  from  the  five  highest  on  the 
list  the  said  house  shall  in  like  manner  choose  the  president. 
But  in  choosing  the  president,  the  votes  shall  be  taken  by 
States,  the  representation  from  each  State  having  one  vote;  a 
quorum  for  this  purpose  shall  consist  of  a  member  or  members 
from  two  thirds  of  the  States,  and  a  majority  of  all  tiie  States 
shall  be  necessary  to  a  choice.  In  every  case,  after  the  choice 
of  the  president,  the  person  having  the  greatest  number  of 
votes  of  the  electors  shall  be  the  vice-president.     But  if  there 


CONSTITUTION    OF   THE    UNITED    STATES.  43 

should  remain  two  or  more  who  have  equal  votes,  the  senate 
shall  choose  from  them  by  ballot  the  vice-president. 

4.  The  congress  may  determine  the  time  of  choosing  the  Congress  may 
electors,  and  the  day  on  which  they  shall  give  their  votes ;  choSingThV*^ 
which  day  shall  be  the  same  throughout  the  United  States.        ek-cto'sretc. 

5.  No  person  except  a  natural  born  citizen,  or  a  citizen  of  Qualifications 
the  United  States,  at  the  time  of  the  adoption  of  this  consti-  °*  P'""'''''^"'- 
tution,  shall  be  eligible  to  the  office  of  president;  neither  shall 

any  person  be  eligible  to  that  office  who  shall  not  have  at- 
tained to  the  age  of  thirty-five  years,  and  been  fonrtcen  years 
a  resident  within  the  United  States. 

6.  In  case  of  the  removal  of  the  president  from  office,  or  of  l"  <^"se  of  va- 
his  death,  resignation,  or  inability  to  discharge  the  powers  and  oftke  J"presi- 
duties  of  the  said  office,  the  same  shall  devolve  on  the  vice-  president to*"^" 
president,  and  the  congi-ess  may  by  law  provide  for  the  case  of '"'''  ""'• 
removal,  death,  resignation,  or  inability,  both  of  the  president 

and  vice-president,  declaring  what  officer  shall  then  act  as 
president,  and  such  officer  shall  act  accordingly,  until  the  disa- 
bility be  removed,  or  a  president  shall  be  elected. 

7.  The  president  shall,  at  stated  times,  receive  for  his  ser-  Compensation 
vices,  a  compensation,  which  shall  neither  be  increased  nor  jent.^  P'"'"'" 
diminished  during  the  period  for  which  he   shall  have  been 

elected,  and  he  shall  not  receive  within  that  period  any  other 
emolument  from  the  United  States,  or  any  of  them. 

8.  Before  he  enters  on  the  execution  of  his  office,  he  shall  The  president 
take  the  following  oath  or  affirmation  :  —  Form  of  "he '''" 

"I   do    solemnly  swear    (or    affirm)   that    I    will  faithfully  "''"'■ 
execute  the  office  of  president  of  the  United  States,  and  will, 
to  the  best  of  my  ability,  preserve,  protect,  and  defend  the 
constitution  of  the  United  States." 

SECTION    II. 

1.  The  president  shall  be  commander-in-chief  of  the  army  The  president 
and  navy  of  the  United  States,  and  of  the  militia  of  the  several  in-cS-"bf " 
States,  when  called  into  the  actual  service  of  the  United  States  ;  "p&ons'orex- 
he  may  require  the  opinion,  in  writing,  of  the  principal  officer  ccnUve  offi-  _ 
in  each  of  the  executive  departments,  upon  any  subject  relat- e™''t  i'!V"l"lrs, 
ing  to  the  duties  of  their  respective  offices ;  and  he  shall  have  "'''" 
power  to  gi-ant  reprieves  and  pardons  for  offences  against  the 

United  States,  except  in  cases  of  impeachment. 

2.  He  shall  have  power,  by  and  with  the  advice  and  consent  Hemav.bvad- 
of  the  senate,  to  make  treaties,  provided  two  thirds  of  llie  sen-  aie'nlurtroa: 


44 


COXSTITCTION   OF   THE   UNITED    STATES. 


ties,  appoint 
ambfissadors 
and  other  offi- 
cers ;  but  con- 
gress may  vest 
certain  ap- 
pointments 
otherwise. 


President  may 
fill  vacancies  in 
recess. 


ators  present  concur;  and  he  shall  nominate,  and  by  and  with 
the  advice  and  consent  of  the  senate,  shall  appoint  ambassa- 
dors, other  public  ministers  and  consuls,  judges  of  the  supreme 
court,  and  all  other  officers  of  the  United  States,  whose  ap- 
pointments are  not  herein  otherwise  provided  for,  and  which 
shall  be  established  by  law  :  but  the  congress  may  by  law  vest 
the  appointment  of  such  inferior  officers,  as  they  think  proper, 
in  the  president  alone,  in  the  courts  of  law,  or  in  the  heads  of 
departments. 

3.  The  president  shall  have  power  to  fill  up  all  vacancies 
that  may  happen  during  the  recess  of  the  senate,  by  granting 
commissions  which  shall  expire  at  the  end  of  their  next  session. 


President  to 
recommend 
measures  to 
congress,  etc., 
—  convene 
and  adjourn 
congress  on 
certain  occa- 
sions,—  re- 
ceive ambassa- 
dors, see  the 
laws  executed, 
and  commis- 
sion officers. 


SECTION   III. 

He  shall  from  time  to  time  give  to  the  congi'ess  information 
of  the  state  of  the  union,  and  recommend  to  their  consideration 
such  measures  as  he  shall  judge  necessary  and  expedient ;  he 
may,  on  extraordinary  occasions,  convene  both  houses,  or  either 
of  them,  and  in  case  of  disagreement  between  them,  with  re- 
spect to  the  time  of  adjournment,  he  may  adjourn  them  to 
such  time  as  he  shall  think  proper;  he  shall  receive  ambassa- 
dors and  other  public  ministers ;  he  shall  take  care  that  the 
laws  be  faithfully  executed,  and  shall  commission  all  the  of- 
ficers of  the  United  States. 


SECTION   IV. 


The   president,  vice-president,  and  all   civil  officers   of  the 


President  and 
otlier  officers 

removable  by    United  States,  shall  be  removed  from  office  on  impeachment 

impeachment.  ,  .      . 

for,  and  conviction  of,  treason,  bribery,  or  other  higii  crimes 
and  misdemeanors. 


ARTICLE   III. 


SECTION   I. 

Judicial  power      Thg  judicial  power  of  the  United  States  sliall  be  vested  in 

vested  m  a  su-  •'  '  «    .• 

preme  court,     one  Supreme  court,  and  in  such  inferior  courts  as  the  consress 

etc.,  judges  to  .  *^ 

hold 'their  offl-  may  from  tmie  to  time  ordam  and  establish.     The  judges, 

good  behavior,  both  of  the  supreme  and  inferior  courts,  sliall  liold  tlieir  offices 

during  good  behavior;  and  shall,  at  stated  times,  receive  for 

their  services,  a  compensation,  which  shall  not  bo  diminished 

during  their  continuance  in  office. 


CONSTITUTION   OF   THE   UNITED    STATES.  45 


1.  The  judicial  power  shall  extend  to  all  cases,  in  law  and  Kxtcntofthe 
equity,  arising  under  this  constitution,  the  laws  of  the  United '"''""''' ■"""'""■ 
States,  and  treaties  made,  or  which  shall  be  made,  under  their 
authority;  —  to  all  cases  affecting  ambassadors,  other  public 
ministers  and  consuls;  —  to  all  cases  of  admii-alty  and  mari- 
time jurisdiction  ;— to  controversies  to  which  the  United  States 
shall  be  a  party;  —  to  controversies  between  two  or  more 
States;  —  between  a  State  and  citizens  of  another  State  ;  — 
between  citizens  of  different  States;  —  between  citizens  of  the 
same  State  claiming  lands  under  grants  of  different  States,  and 
between  a  State,  or  the  citizens  thereof,  and  foreign  States, 
citizens,  or  subjects.* 

2.  In  all  cases  affecting  ambassadors,  other  public  ministers  Original  nnj 
and  consuls,  and  those  in  which  a  State  shall  be  party,  the  mSoVti.?" 
supreme  court  shall  have  original  jurisdiction.     In  all  the  other  ^"P'"™^^  <=°"'''- 
cases  before  mentioned,  the  supreme  court  shall  have  appellate 
jurisdiction,  both  as  to  law  and  fact,  with  such  exceptions,  and 

under  such  regulations  as  the  congress  shall  make. 

3.  The  trial  of  all  crimes,  except  in  cases  of  impeachment.  Trial  of  crimes 
shall  be  by  jury ;  and  such  trial  shall  be  held  in  the  State  where  *° ''"  ''^•''"^"' 
the  said  crime  shall  have  been  committed  ;  but  when  not  com-  The  venue. 
mitted  within  any  State,  the  trial  shall  be  at  such  place  or 

places  as  the  congress  may  by  law  have  directed. 


SECTION   III. 


1.  Treason  against  the  United  States,  shall  consist  only  in  Definition  of 

1         •  •      j_    ii  •  T,       .  ,     .  treason,  etc. 

levying  war  agamst  them,  or  in  adhermg  to  their  enemies, 
giving  them  aid  and  comfort.  No  person  shall  be  convicted 
of  treason  unless  on  the  testimony  of  two  witnesses  to  the 
same  overt  act,  or  on  confession  in  open  court. 

2.  The  congress  shall  have  power  to  declare  the  punishment  Congi-essto  de- 
of  treason,  but  no  attainder  of  treason  shall  work  corruption  i^shme'irtoftiTa- 
of  blood,  or  forfeiture,  except  during  the  life  of  the  person  '°"'  ''''^" 
attainted. 

[*  Ameuded,  see  art.  11.] 


46  CONSTITUTION   OF   THE   UNITED    STATES. 


ARTICLE    IV. 

SECTION   I. 

Credit  to  be  Full  faith   aiid  credit  shall  be   giveia  in  each   State  to  the 

itluetoth"  public  acts,  records,  and  judicial  proceedings  of  every  other 
et'c^.'ofanotW.  State.     And  the  congress   may  by  general  laws  prescribe  the 

manner  in  which  such  acts,  records,  and  proceedings  shall  be 

proved,  and  the  efTect  thereof. 

SECTION    II. 

Reciprocity  of       J.    The  citizens  of  each  State  shall  be  entitled  to  all  privi- 

citizenship  . 

througiiout  the  leges  and  immunities  of  citizens  in  the  several  States. 
Crimhiaisfly-  2.  A  person  charged  in  any  State  with  ti-eason,  felony,  or 
Stlteto^iTo'ther  other  Crime,  who  shall  flee  from  justice,  and  be  found  in 
to  be  delivered  another  State,  shall  on  demand  of  the  executive  authority  of 
the  State  from  which  he  fled,  be  delivered  up,  to  be  removed 
to  the  State  having  jurisdiction  of  the  crime. 
Runaway  3.   No  person  held  to  service  or  labor  in  one  State,  under  the 

slaves,  etc.,  to,  ,  „  .  .     ,  ,,  in-  c 

be  deUvered  laws  thereof,  escapmg  into  another,  shall,  in  consequence  ot 
"^"  any  law  or  regulation  therein,  be  discharged  from  such  service 

or  labor,  but  shall  be  delivered  up  on  claim  of  the  party  to 

whom  such  service  or  labor  may  be  due. 

SECTION   III. 

New  States  1.    New  States  may  be  admitted  by  the  congress  into  this 

ted^ntoth™     Union;  but  no  new  State  shall  be  formed  or  erected  within 
Union,  etc.       ^^^  jurisdiction  of  any  other  State ;  nor  any  State  be  formed 
by  the  junction  of  two  or  more  States,  or  parts  of  States,  with- 
out the  consent  of  the  legislatures  of  the  States  concerned  as 
well  as  of  the  congress. 
Congress  to  2.  The  concress  shall  have  power  to  dispose  of  and  make  all 

have  power  of  °  •  iU 

territory,  etc.  needful  rules  and  regulations  respecting  the  teiTitory  or  other 
property  belonging  to  the  United  States ;  and  nothing  in  this 
constitution  shall  be  so  construed  as  to  prejudice  any  claims 
of  the  United  States,  or  of  any  particular  State. 

SECTION   IV. 

liepuWicin  The  United   States  shall  guarantee  to  every  State  in  this 

rnentgimron'-"  Union  a  republican  form  of  government,  and  shall  protect  each 
s^tate"'etc.°''      of  them  against  invasion;  and  on  application  of  the  legisla- 


CONSTITUTION    OF   THE    UNITED    STATES.  47 

ture,  or  of  the  executive,  (when  the  legislature  cannot  be  con- 
vened,) against  domestic  violence. 


ARTICLE    V. 

The  congress  whenever  two  thirds  of  both  houses  shall  Modeofaraend- 
deem  it  necessary,  shall  propose  amendments  to  this  constitu-  tufiou!^  "°"^"" 
tion,  or,  on  the  application  of  the  legislatures  of  two  thirds  of 
the  several  States,  shall  call  a  convention  for  proposing  amend- 
ments, which,  in  either  case,  shall  be  valid  to  all  intents  and 
purposes,  as  part  of  this  constitution,  when  ratified  by  the 
legislatures  of  three  fourths  of  the  several  States,  or  by  con- 
ventions in  three  fourths  thereof,  as  the  one  or  the  other  mode 
of  ratification  may  be  proposed  by  the  congress;  Provided, 
That  no  amendment  which  may  be  made  prior  to  the  year 
one  thousand  eight  hundred  and  eight  shall  in  any  manner 
affect  the  first  and  fourth  clauses  in  the  ninth  section  of  the 
first  article  ;  and  that  no  State,  without  its  consent,  shall  be 
deprived  of  its  equal  suffrage  in  the  senate. 


ARTICLE    VI. 

1.  All  debts  contracted  and  engagements  entered  into,  be-  Assumption  of 
fore  the  adoption  of  this  constitution,  shall  be  as  valid  against  under  'Z'^con 
the  United   States  under  this  constitution,  as  under  the  con-  ^^'^^''^^"'>"- 
federation. 

2.  This   constitution,  and  the   laws   of  the   United  States  This  constitu- 
which  shall  be  made  in  pursuance  thereof;  and  all  treaties  conies'!  and 
made,  or  which   shall  be  made,  under  the   authority  of  the  ^u^feme'iaw— 
United  States,  shall  be  the  supreme  law  of  the  land  ;  and  the  *'"-'  ^-""^ 

1  •  oj     ,         1      11  1       ,  -,     ,  jiiiiu'es  bound 

judges  m  every  State  shall  be  bound  thereby,  any  thing  in  the  tUereijy. 
constitution  or  laws  of  any  State  to  the  contrary  notwith- 
standing. 

3.  The  senators  and  representatives  before  mentioned,  and  Members  of 
the  members  of  the  several  State  legislatures,  and  all  executive  the  sStckgis'^ 
and  judicial  officers,  both  of  the  United  States  and  of  the  iTound^'byfath 
several  States,  shall  be  bound  by  oath  or  affirmation,  to  sup-  constitution'''''' 
port   this    constitution;  but    no    religious  test  shall   ever    be 
required  as  a  qualification  to  any  office  or  public  trust  under 

the  United  States. 


48 


CONSTITUTION    OF   THE   UNITED    STATES. 


ARTICLE  VII. 

Ratification  of        The  ratification  of  the  conventions  of  nine  States,  shall  be 

nine  States,  ^  ^  ' 

sufficient,  etc.   sufficient  for  the  establishment  of  this  constitution  between 
the  States  so  ratifying  the  same. 

DoxE  in  convention  by  the  unanimous  consent  of  the  States  present,  the  seven- 
teenth day  of  September  in  the  year  of  our  Lord  one  thousand  seven  hundred 
and  eighty-seven,  and  of  the  independence  of  the  United  States  of  America  the 
twelfth.    In  witness  whereof  we  have  hereunto  subscribed  our  names. 

GEORGE  WASHINGTON, 

President,  and  deputi/ from  Virginia. 

Delaware. 
GEORGE  HEAD, 
GUNNING  BEDI-ORD,  Jr., 
•lOHN  DICKINSON, 
RICHARD  liASSETT, 
JACOB  BROOM. 


New  Hampshire. 
JOHN  LANGDON, 
NICHOLAS  OILMAN. 

Massachusetts. 
NATHANIEL  GORHAM, 
KUFUS  laNG. 


COSXECTICUT. 

WILLIAM  SAMUEL  JOHNSON, 
ROGER  SHERMAN. 

New  York. 
ALEXANDER  HAMILTON. 

New  Jersey. 
WILLIAM  LIVINGSTON, 
DAVID  BRl'.ARLV, 
WILLIAM  PATTERSON, 
JONATHAN  DAYTON. 

Pennsylvania. 

BENJAMIN  FRANKLIN, 
THOMAS  MIFFLIN, 
■ROIiEKT  MURRIS, 
GEOiaiF  CLVMFI!, 
THOMAS  FITZSIMONS, 
JARKK  iNi;i:i;suLL, 
james  wilsux, 
govei;xkl:i:  morris. 


Attest, 


Maryland. 
JAMES  M'HENRY, 

DANIEL  OF  ST.  THOMAS  JENIFER, 
DANIEL  CARROLL. 

Virginia. 
JOHN  BL.UE, 
JAMES  MADISON,  Jr. 

North  Carolina. 
WILLI.A.M  BLOUNT, 
RICHARD  DOBBS  SI'AIGHT, 
HUGH  WILLIAMSON. 

South  Carolina. 
J.  RUTLEDGE, 

CHAS.  COTKSWORTH  PINCKNEY, 
CHARLES  PINCKNEY, 
PIERCE  BUTLER. 

Georgia. 
WILUAM  FEW, 
ABR.  BALDWIN. 

William  Jackson,  Secretary. 


Resolved,  That  this  convention,  in  behalf  of  the  freemen, 
citizens  and  inhabitants  of  the  State  of  North  Carolina, 
do  adopt  and  ratify  the  said  constitution  and  form  of  govern- 
ment. SAMUEL  JOHNSTON,  President. 

By  order,  J.  Hunt,   Secretary. 


In  Convention,  Monday,  September  17tii,  1787. 

Present:  the  States  of  New  Hampshire,  Massachusetts, 
Connecticut,  Mr.  Hamilton  from  New  York,  New  Jersey, 
Pennsylvania,  Delaware,  Maryland,  Virginia,  North  Carolina, 
South  Carolina,  and  Georgia. 


CONSTITUTION   OF   THE   UNITED    STATES.  49 

1.  Resolved,  That  the  preceding  constitution  be  laid  be-  Constitution  to 
fore  the  United    States  in  congress  assembled,  and  that  it  is  congress "'jtc^' 
the  opinion  of  this  convention,  that  it  should  afterwards  be 
submitted  to  a  convention   of  delegates  chosen  in  each  State 

by  the  people  thereof,  under  the  recommendation  of  its  legis- 
lature, for  their  assent  and  ratification  ;  and  that  each  conven- 
tion assenting  to,  and  ratifying  the  same,  should  give  notice 
thereof  to  the  United  States  in  congress  assembled. 

2.  Resolved,  That  it  is  the  opinion  of  this  convention  that  Congress  to  fix 
as  soon  as  the  conventions  of  nine  States  shall  have  ratified  ^ '?"?  ^'"■'  ?P' 

pointing  eJec- 

this  constitution,  the   United  States   in  consress  assembled  'f*  of  P^esi- 

dent  etc. 

should  fix  a  day  on  which  electors  should  be  appointed  by  the 
States  which  shall  have  ratified  the  same,  and  a  day  on  which 
the  electors  should  assemble  to  vote  for  the  president,  and  the 
time  and  place  for  commencing  proceedings  under  this  consti- 
tution.    That  after  such  publication,  the   electors  should   be 
appointed,  and  the  senators  and  representatives  elected.     That  mendedfoi^ar 
the  electors  should  meet  on  the  day  fixed  for  the  election  of  sSufionlnto" 
the  president,  and  should  transmit  their  votes,  certified,  signed,  '^^'"^^- 
sealed,  and  directed,  as  the  constitution  requires,  to  the  secre- 
tary of  the   United    States,  in  congress   assembled  ;  that  the 
senators  and  representatives  should  convene  at  the  time  and 
place  assigned ;  that  the  senators  should  appoint  a  president 
of  the  senate,  for  the  sole  purpose  of  receiving,  opening,  and 
counting  the  votes  for  president ;  and,  that  after  he  shall  be 
chosen,  the  congress,  together  with  the  president,  should,  with- 
out delay,  proceed  to  execute  this  constitution. 
By  the  unanimous  order  of  the  convention, 

GEORGE  WASHINGTON,  President. 
William  Jackson,  Secretary. 


i.v  CoNVENTiox,  September  ITth,  1787. 
Sir, 

1.  We  have  now  the  honor  to  submit  to  the  consideration  of  ^^''""' '"':'""  t'"" 

,1         -fj    .,     ,     „  .  convention  that 

ine    United   tetates   m  congress   assembled,  that  constitution  framed  tiiecon- 
which  has  appeared  to  us  the  most  advisable.  president 'of ''''' 

2.  The  friends  of  our  country  have  long  seen  and  desired,  *'°"='"''' 
that  the  power  of  making  war,  peace,  and  ti-eaties ;  that  of 
levying  money,  and  regulating  commerce,  and  the  correspon- 
dent executive  and  judicial  authorities,  should  be  fullv  and 

5 


50  CONSTITUTION    OF   THE   UNITED    STATES. 

effectually  vested  in  the  general  government  of  the  union  :  but 
the  impropriety  of  delegating  such  extensive  trust  to  one  body 
of  men,  is  evident ;  hence  results  the  necessity  of  a  different 
organization. 

3.  It  is  obviously  impracticable  in  the  federal  government 
of  these  States,  to  secure  all  rights  of  independent  sovereignty 
to  each,  and  yet  provide  for  the  interest  and  safety  of  all. 
Individuals  entering  into  society,  must  give  up  a  share  of 
liberty  to  preserve  the  rest.  The  magnitude  of  the  sacrifice 
must  depend  as  well  on  situation  and  circumstance,  as  on  the 
object  to  be  obtained.  It  is  at  all  times  difficult  to  draw  with 
precision  the  line  between  those  rights  which  must  be  sur- 
rendered, and  those  which  may  be  reserved;  and  on  the 
present  occasion,  this  difficulty  was  increased  by  a  difference 
among  the  several  States  as  to  their  situation,  extent,  habits, 
and  particular  interests. 

4.  In  all  our  deliberations  on  this  subject  we  kept  steadily 
in  our  view,  that  which  appears  to  us  the  greatest  interest  of 
every  true  American,  the  consolidation  of  our  Union,  in  which 
is  involved  our  prosperity,  felicity,  safety,  perhaps  our  national 
existence.  This  important  consideration,  seriously  and  deeply 
impressed  on  our  minds,  led  each  State  in  the  convention  to 
be  less  rigid  on  points  of  inferior  magnitude,  than  might  have 
been  otherwise  expected ;  and  thus  the  constitution,  which  we 
now  present,  is  the  result  of  a  spirit  of  amity,  and  of  that 
mutual  deference  and  concession,  which  the  peciffiarity  of  our 
political  situation  rendered  indispensable. 

5.  That  it  will  meet  the  full  and  entire  approbation  of  every 
State,  is  not  perhaps  to  be  expected ;  but  each  will  doubtless 
consider,  that  had  her  interest  been  alone  consulted,  the  conse- 
quences might  have  been  particularly  disagreeable  or  injurious 
to  others  ;  that  it  is  liable  to  as  few  exceptions  as  could  reason- 
ably have  been  expected,  we  hope  and  believe ;  that  it  may 
promote  the  lasting  welfare  of  that  country  so  dear  to  us  all, 
and  secure  her  freedom  and  happiness,  is  our  most  ardent 
wish.  With  gi-eat  respect,  we  have  the  honor  to  be,  Sir,  your 
excellency's  most  obedient  and  humble  servants. 

By  unanimous  order  of  the  convention. 

GEORGE  WASHINGTON,  President. 

His  Excellency  the  President  of  Congress. 


AMENDMENTS  TO  THE  CONSTITUTION. 


ARTICLE    I. 

Congress  shall  make  no  law  respecting  an  establishment  of  Congress  pro- 
religion,  or  prohibiting  the  free  exercise  thereof ;  or  abridging  terSg'Nrith"" 
the  freedom  of  speech,  or  of  the  press ;  or  of  the  people  peace-  f^LS  of**' 
ably  to  assemble,  and  to  petition  the  government  for  a  redress  ^P<^<^'^^<  of  the 

J.       .  '  o  press  anrj  t]jg 

ot  grievances.  right  of  peti- 

ARTICLE    II.  "°°- 

A  well  regulated  militia  being  necessary  to  the  security  of  a  Right  of  tiie 
free  State,  the  right  of  the  people  to  keep  and  bear  arms  shaU  Star  arm?, 
not  be  infringed.  «'c. 

ARTICLE    III. 
No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house  No  soldier  to 
without  the  consent  of  the  owner ;  nor  in  time  of  war,  but  in  any  houJl'rj'ul" 
a  manner  to  be  prescribed  bv  law.  ing  peace,  with- 

'■  •'  out  consent, 

ARTICLE    IV. 

The  right  of  the  people  to  be  secure  in  their  persons,  houses,  No  search  war- 
papers,  and  effects,  against  unreasonable  searches  and  seizures,  exc'eptoTprob- 
shall  not  be  violated ;  and  no  warrants  shall  issue,  but  upon  oath.'^etr' 
probable  cause,  supported  by  oath  or  affirmation,  and  particu- 
larly describing  the  place  to  be  searched,  and  the  persons  or 
things  to  be  seized. 

ARTICLE    V. 

No  person  shall  be  held  to  answer  for  a  capital  or  otherwise  No  person  to 
infamous  crime,  unless  on  a  presentment,  or  indictment  of  aswe^/fOTa*"' 
grand-jury,  except  in  cases  arising  in  the  land  or  naval  forces,  on  present-''' 
or  in  the  militia,  when  in   actual  service,  in  time  of  war  or  "'''"'.'  ^'•^•',  ^'^- 

'  cept  in  the  hind 

public  danger ;  nor  shall  any  person  be  subject  for  the  same  <«■  n''™'  <'o'<^es. 

rn  ill-  ,••  n         „,.„,  nor  to  answer 

ottence  to  be  twice  put  in  jeopardy  of  life  or  limb  ;  nor  shall  for  the  same 
be  compelled  in  any  criminal  case,  to  be  a  witness  against  e£"'' """' 
himself,  nor  be  deprived  of  life,  liberty,  or  property,  without 
due  process  of  law ;  nor  shall  private  property  be  taken  for 
public  use  without  just  compensation. 


52  CONSTITUTION   OF   THE   UNITED    STATES. 

ARTICLE    VI. 

Assurance  of         In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right 

public^ trial  by  to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the  State 

Sinl? prose-  and  district  wherein   the   crime   shall  have   been   committed, 

cutious.  which  district  shall  have  been  previously  ascertained  by  law, 

and  to  be  informed  of  the  nature  and  cause  of  the  accusation  ; 

to  be   confronted  with  the  witnesses   against  him;  to  have 

compulsory  process  for  obtaining  witnesses  in  his  favor ;  and 

to  have  the  assistance  of  counsel  for  his  defence. 

ARTICLE    VII. 

Right  of  trial         J         i|g  at  common  law,  where  the  value  in  controversy 

by  jury  insults  '  .-       •    i    i        •  i     11  u 

at  common       ghall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be 

law,  above  the  •'  .     ,    ,  •  i     11    u         lu         •   «   ^,^ 

valueoftwenty  preserved;  and  no  fact  tried  by  a  jury  shall  be  otherwise  re- 
doiiars,  etc.      g3j.j^j^-„gji  j„  any  court  of  the  United  States,  than  according  to 
the  rules  of  the  common  law. 

ARTICLE    VIII. 

an^d  uniiluai''"'      ExcesslvB  bail  shall  not  be  required,  nor  excessive  fines  im- 
and  cruel  pun-  ^qqqA  nor  cruel  and  unusual  punishments  inflicted. 

ishments,  pro-    r  '  ^ 

hibited. 

ARTICLE    IX. 

?it?dnot°oSs:      The  enumeration  in  the  constitution,  of  certain  rights,  shaU 
retamed''""'     "°*  ^^  construed  to  deny  or  disparage  others  retained  by  the 
people. 

ARTICLE    X. 
TgaTed'etellit      The  powers  not  delegated  to  the  United  States  by  the  con- 
sSi  p'eo-'  stitution,  nor  prohibited  by  it  to  the  States,  are  reserved  to  the 
Pl«-  States  respectively,  or  to  the  people. 

ARTICLE    XI. 

fudict"        The  judicial  power  of  the  United  States  shall  not  be  con- 
*"■'•  strued  to  extend  to  any  suit  in  law  or  equity,  commenced  or 

prosecuted  against  one   of  the  United  States  by  citizens  of 
another  State,  or  by  citizens  or  subjects  of  any  foreign  State. 

ARTICLE    XII. 

Mode  of  elect        J     The  electors  shall  meet  in  their  respective   States,  and 

ing  the  presi-  .  .  ,       ,  r       \ 

dent  and  vice-  vote  by  ballot  for  president  and  vice-president,  one  oi  whom. 


CONSTITUTION   OP    THE   UNITED    STATES.  53 

at  least,  shall  not  be   an  inhabitant   of  the   same   State  with  president  of  the 
themselves ;  they  shall  name  in  their  ballots  the  person  voted       '"'  '^*'"^'' 
for  as  president,  and  in  distinct  ballots  the  person  voted  for  as 
vice-president ;  and  they  shall  make  distinct  lists  of  all  persons 
voted  for  as  president,  and  of  all  persons  voted  for  as  vice- 
president,  and  the  number  of  votes  for  each,  which  lists  they 
shall  sign  and  certify,  and  transmit  sealed  to  the  seat  of  the 
government  of  the  United  States,  directed  to  the  president  of 
the  senate ;  the  president  of  the  senate  shall,  in  the  presence  of 
the  senate  and  house  of  representatives,  open  all  the  certifi- 
cates, and  the  votes  shall  then  be  counted:  the  person  having 
the  greatest  number  of  votes  for  president,  shall  be  the  presi- 
dent, if  such  number  be  a  majority  of  the  whole  number  of 
electors  appointed ;  and  if  no  person  have  such  majority,  then 
from  the  persons  having  the  highest  numbers,  not  exceeding 
three,  on  the  list  of  those  voted  for  as  president,  the  house  of 
representatives  shall  choose  immediately,  by  ballot,  the  presi- 
dent.    But  in  choosing  the  president,  the  votes  shall  be  taken 
by  States,  the  representation  from  each  State  having  one  vote ; 
a  quorum  for  this  purpose  shall  consist  of  a  member  or  mem- 
bers from  two  thirds  of  the  States,  and  a  majority  of  all  the 
States  shall  be  necessary  to  a  choice.     And  if  the  house  of 
representatives  shall  not  choose  a  president  whenever  the  right 
of  choice  shall  devolve  upon  them,  before  the  fourth  day  of 
March  next  following,  then  the  vice-president  shall  act  as  presi- 
dent, as  in  the  case  of  the  death  or  other  constitutional  disa- 
bility of  the  president. 

2.  The  person  having  the  greatest  number  of  votes  as  vice- 
president,  shall  be  the  vice-president,  if  such  number  be  a  ma- 
jority of  the  whole  number  of  electors  appointed ;  and  if  no 
person  have  a  majority,  then  from  the  two  highest  numbers  on 
the  list,  the  senate  shall  choose  the  vice-president :  a  quorum 
for  the  purpose  shall  consist  of  two  thirds  of  the  whole  number 
of  senators,  and  a  majority  of  the  whole  number  shall  be  neces- 
sary to  a  choice. 

3.  But  no  person  constitutionally  ineligible  to  the  office  of 
president,  shall  be  eligible  to  that  of  vice-president  of  the 
United  States. 


INDEX 


CONSTITUTION  OF  THE  UNITED  STATES. 


A. 

Acts,  records,  and  judicial  proceedings  of  each  State,  entitled  to 

faith  and  credit  in  other  States, 

Amendments  to  the  Constitution,  how  made,         .         .         .         • 

Appropriations  by  law  —  See  Treasury, 

^Wawrfer,  bill  of,  prohibited,        .         .         •_       •    , ,  •         '  <•    /-^ 
Attainder,  of  treason,  shall  not  work  corruption  of  blood,  or  lorleit- 
ure,  except  during  the  life  of  the  person  attainted, 

B. 

Bills  for  raising  revenue,  shall  originate  in  the  House  of  Reprcsent- 

Bills,  before'they  become  laws,  shall  be  passed  by  both  Houses  and 
approved  by  the  President;  or,  if  disapproved,  shall  be 
passed  by  two  thirds  of  each  House,     .         .         •         • 

Bills  not  returned  in  ten  days,  unless  an  adjournment  intervene, 
shall  be  considered  as  approved, 

C. 

Capitation  Tax  —  See  Tax, 

Census,  or  enumeration,  to  be  made  every  ten  years,  . 

Claims  of  the  United  States,  or  of  the  several  States,  not  to  be 

prejudiced  by  any  construction  of  the  Constitution,      . 
Citizens  of  each  State,  shall  be  entitled  to  the  privileges  and  immu- 
nities of  citizens  in  the  several  States,       •        .•         • 
Commerce,  regulations  respecting,  to  be  equal  and  uniform,     . 
Congress,  vested  with  Legislative  power,     •        •        •         •        ; 

may  alter  the  regulations  of  Suvte  Legislatures  concerning 
elections  of  Senators  and  Representatives,  except  as  to  the 

place  of  choosing  Senatoi-s, 

shall  assemble  once  every  year,         .         •         •         ',  ,,.' 
may  provide  for  cases  of  removal  of  Tresident  and  \  ico- 

Prcsident, <•'  t>      •  i     > 

may  determine  the  time  of  choosing  Electors  of  1  resident 

and  Vice-President, •      i"    t>  '  • 

may  invest  the  appointment  of  inferior  officers  in  the  1  resi- 
dent alone,  in  the  courts  of  law,  or  heads  of  departments, 
may,  from  time  to  time,  establish  courts  inferior  to  the  su- 
premo court, 


CONSTITUTION  OF  THE  UNITED  STATES. 


55 


Congress  may,  (with  one  limitation,)  declare  tlie  punishment  of 

treason,        .        .        .        '. 

may  prescribe  the  manner  of  proving  the  acts,  records,  and 
judicial  proceedings  of  each  State,        .... 

the  assent  of,  required  to  the  formation  of  a  new  State,  with- 
in the  jurisdiction  of  any  other,  or  by  the  junction  of  two 
or  more, 

may  propose  amendments  to  the  Constitution,  or,  on  appli- 
cation, call  a  Convention,      ...... 

the  assent  of,  required  to  the  admission  of  new  States  into 
the  Union,         ......... 

Congress,  powers  of — 

to  lay  and  collect  taxes,  duties,  imposts,  and  excises,    . 

to  borrow  money,     ........ 

to  regulate  commerce,  ........ 

to  establish  uniform  laws  of  bankruptcy  and  naturalization, 

to  coin  money,  regulate  the  value  of  coin,  and  fix  a  standard 
of  weights  and  measures, 

to  punish  counterfeiting,  ....... 

to  establish  post-offices  and  post-roads,  .... 

to  authorize  patents  to  authors  and  inventors,  . 

to  constitute  tribunals  inferior  to  the  supreme  court,    . 

to  define  and  punish  piracies,  felonies  on  the  high  seas,  and 
offences  against  the  laws  of  nations,       .... 

to  declare  war,  grant  letters  of  marque,  and  make  rules 
concerning  captures,         ....... 

to  raise  and  support  armies, 

to  provide  and  maintain  a  navy,  ...... 

to  make  rules  for  the  government  of  the  army  and  navy, 

to  call  for  the  militia  in  certain  cases,        .... 

to  organize,  arm,  and  discipline  militia,         .... 

to  exercise  exclusive  legislation  over  ten  miles  square, 

to  pass  laws  necessary  to  carry  the  enumerated  powers  into 
effect, 

to  dispose  of,  and  make  rules  concerning,  the  territory  or 
other  property  of  the  United  States,      .... 
ConstUulion,  formed  by  the  people  of  the  United  States,  Preamble, 

how  amended,      ......... 

and  the  laws  under  it,  and  treaties,  declared  to  be  the  su- 
preme law, 

rendered  operative  by  the  ratification  of  the  Conventions  of 

nine  States, 

Conventions  for  proposing  amendments  to  Constitution, 
Court,  supreme,  its  original  and  appellate  jurisdiction,    . 
Courts,  inferior  to  the  supreme  court,  may  be  ordained  by  Congress, 
Crimes,  persons  accused  of  fleeing  from  justice,  may  be  demanded, 


Art. 

Sec. 

3 

3 

4 

1 

4 

3 

5 

1 

4 

3 

D. 

Debts,  against  the  Confederation,  to  be  valid  against  the  United 
States  under  this  Constitution,         ..... 

Duties  on  exports  prohibited,         ....... 

on  imports  and  exports,  imposed  by  States,  shall  enure  to 
the  Treasury  of  the  United  States,        .... 


E. 

Elections,  of  Senators  and  Representatives,  shall  be  prescribed  by 

the  State  Legislatures,  as  to  time,  place,  and  manner,  .         .       1 
qualifications  and  returns  of  members  of  Congress  to  be  de- 
termined by  each  House, 1 


56  INDEX   TO    THE 

• 

Art.    Sec. 

Electors  of  President  and  Vice-President,  how  chosen,  and  their 

duties, 2         1 

and  12th  amendment, 
shall  vote  the  same  day  throughout  the  United  States,      .  2         1 

no   Senator  or   Representative,  holding  office    under   the 

United  States,  shall  serve  as, 2         1 

Enumeration  —  See  Census, 12 

Executive  Power  shall  be  vested  in  a  President,     ....       2         1 

See  President. 
Exports — See  Tax. 

and  imports,  duties  on  by  States,  to   bo  payable  into  the 

Treasury  of  the  United  States, 1       10 

Ex  post  facto  Law,  none  shall  be  passed,         .....       1         9 

H. 

Habeas  Corpus,  writ  of,  can  only  be  suspended  in  cases  of  rebellion 

or  invasion,  .......••  19 

House  of  Representatives —  See  Representatives. 
House  —  See  Senate. 

I. 

Impeachment,  all  civil  officers  liable  to, •2         4 

persons  found  guiltj'  by,  liable  to  indictment  and  punish- 
ment for  the  offence,     .......  13 

Importation  of  Slaces,  until  prohibited,  a  duty  authorized  on,  after 

1808, 19 

J. 

Judges,  shall  hold  their  offices  during  good  behavior,    .         .         .3         1 
the  compensations  of,  shall  not  be  diminished  during  con- 
tinuance in  office,  .......  31 

Judicial  Power,  vested  in  a  Supreme  Court,  and  Courts  inferior,    .       3         1 
the  cases  to  which  it  extends,    ......  32 

Judicial  Proceedings,  records,  and  acts  of  each  State,  are  entitled 

.  to  faith  and  credit  in  every  other  State,        ....       4         1 

Jurg  trial  shall  be  held  in  the  State  where  the  crime  shall  have 

been  committed,        ........  32 

if  the  crime  have  not  been  committed  within  a  State,  the  trial 

shall  be  held  at  the  place  Congress  shall  have  directed,         .       3         2 
Jury,  trial  by,  secured  in  prosecution  for  all  crimes,  except  in  cases 

of  impeachment, 3         2 

and  in  suits  at  common  law,  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  7th  amendment. 

L. 

Law,  Supreme,  the  Constitution,  the  laws  under  it,  and  treaties  de- 
clared to  be,  ......■••       6         2 

Legislative  Power,  vested  m  ConffL'ess — See  Congress,        ..11 


M. 

Money  shall  be  drawn  from  the  Treasury,  only  by  laws  appropri- 
ating,     


1         9 


N. 
Nobility,  titles  of,  shall  not  be  granted  by  the  United  States,        .  1         9 


CONSTITUTION   OF   THE   UNITED    STATES, 


57 


o. 

Officers  of  the  Senate,  except  their  President,  shall  be  chosen  by 

the  Senate,       •■-......       i 

civil,  may  be  removed  by  impeachment,   ....  2 

Order,  of  one  House,  requiring  the  concurrence  of  the  other  — Sec 

Resolution,         ••••...,,       \ 

P. 

Persons  held  to  labor  or  service,  their  importation  or  migration  into 

the  United  States,  may  be  prohibited  after  ISOS,  .  1 

escaping  from  one  State  to  another,  shall  be  delivered  np  to 

those  entitled  to  their  service, 4 

Powers,  not  delegated,  are  resers-ed  to  the  people,  or,  vfhen  not  pro- 
hibited, to  the  States,  10th  amendment. 

Legislative  —  See  Congress, 1 

Executive  —  See  President, 2 

Judicial  —  See  Judicial, 3 

Presents,  emoluments,  office  or  title,  from  a  foreign  king,  prince,  or 
State,  to  persons  holding  offices  of  profit  or  trust,  prohib- 
ited,   2 

President  of  the  U.  S.  vested  with  the  executive  power,       .         .  2 

shall  be  chosen  lor  four  years 2 

how  elected, 2 

qualifications  for, 2 

compensation  of, 2 

shall  take  an  oath  of  office, 2 

may  be  removed  by  impeachment, 2 

President  of  the  U.  S.,  powers  of — 

shall  be  commander-in-chief  of  the  army  and  navy,      .         .       2 
may  require  the  written  opinions  of  the  heads  of  depart- 
ments,   2 

may  reprieve  and  pardon, 2 

may  make  treaties,  with  consent  of  the  Senate,         .        .  2 

may  appoint  to  office,  with  consent  of  the  Senate,         .         .       2 
shall  fill  up  vacancies  happening  during  the  recess  of  the 
Senate,         .........  2 

President  of  the  United  States,  duties  o{ — 

shall  give  information  to  Congress,  and  recommend  measures,       2 
may  convene  both  Houses,  or  either  House,  ...       2 

may  adjourn  them  in  case  of  disagreement,       ...  2 

shall  receive  ambassadors  and  public  ministers,     ...       2 
shall  take  care  that  the  laws  be  faithfully  executed,  .         .  2 

shall  commission  all  officers  of  the  United  States,       .         .       2 
in  case  of  death,  etc.,  shall  devolve  on  the  Vice-President, 
and  on  such  others  as  may  be  provided  by  law,     .         .  2 

Privileges  and  immunities  of  citizens  of  the  States  —  See  Citizens. 
Property  shall  not  be  taken  for  public  use,  without  just  compensa- 
sation  —  5th  amendment. 


Quorum,  what  shall  be,  for  business, 1 

of  States,  in  choosing  a  President  by  the  House  of  Repre- 
sentatives,          2 

R. 

Receipts  and  expenditures,  accounts  of,  to  be  published,       .         .  1 

Records  —  See  Judicial  Proceedings, 4 

Representatives,  House   of,   composed  of   members   chosen    every 

second  year, 1 

qualifications  of  the  electors  of  its  members,          ...  1 

qualifications  of  members, 1 

shall  not  exceed  one  for  every  30,000,          ....  1 


58 


INDEX   TO   THE 

Representatives,  House  nf — 

shall  choose  their  speaker  and  other  officers,     . 

shall  have  the  power  of  iiiipeachnient,  .         .         .         . 

shall  be  the  judge  of  the  returns,  elections,  and  qualifications 

of  its  members, 15 

what  shall  be  a  quorum  of,  .         .         .         .         .         .         .1         5 

any  number  may  adjourn,  and  compel  the  attendance  of 

absentees,      . 15 

may  determine  the  rules  of  proceeding,         ....       1         5 

may  punish  or  expel  a  member,        .         ;         .         .         .  15 

shall  keep  a  journal,  and  publish  the  same,  except  the  parts 
requiring  secrecj',     ........ 

shall  not  adjourn  for  more  than  three  days,  nor  to  any  other 

place,  without  the  consent  of  the  Senate,       ...  15 

one  fifth  of,  present,  may  require  the  yeas  and  nays,    ..16 
shall  originate  bills  for  raising  revenue,     .... 

shall  receive  a  compensation  to  be  ascertained  by  law, 
privileged  from  arrest,  during  attendance,  and  in  going  and 
returning,  except  in  certain  cases,         .... 

shall  not  be  questioned  elsewhere  for  any  speech  or  debate 

in  the  House, ■         • 

shall  not  be  appointed  to  the  offices  created,  or  whose  com- 
pensations shall  have  been  increased  during  the  time  ibr 
which  they  are  elected,  ......  16 

can,  whilst  serving,  hold  no  office  under  the  United  States,         1         6 
shall  not  serve  as  primary  electors  of  president,    ...       2         1 
and  direct  taxes,  apportioned  according  to  numbers,         .  1         2 

Representation  of  a  State,  vacancies  in,  supplied  until  a  new  elec- 
tion by  the  Executive  authority  thereof,  .... 

Resolution,  order,  or  vote,  requiring  the  concurrence  of  both  Houses, 
(except  for  an  adjournment,)  shall  be  presented  to  the 
President,  and  undergo  the  formalities  of  bills. 
Revenue  —  See  Vessels. 

Rights  of  the  Citizen  ieclared  to  he —  Amend, 

liberty  of  conscience  in  matters  of  religion,  ...  1 

freedom  of  speech  and  of  the  press,  ....  1 

to  assemble  and  petition,      .......  1 

to  keep  and  bear  arms,     ......._  2 

to  be  exempt  from  quartering  of  soldiers,  in  any  house,  in 
time  of  peace,  without  the  consent  of  the  owner ;  and  in 
time  of  war,  unless  prescribed  by  law,      ....  3 

to  be  secure  from  any  unreasonable  searches  and  seizures,  4 

to  be  free,  except  in  the  army,  navy,  and  militia,  from 
answering  for  a  capital,  or  otherwise  infamous  crime, 
unless  on  presentment  or  indictment  of  a  grand-jury,       .  5 

Art.  Sec. 
Rights,  not  to  be  twice  jeopardized  for  the  same  offence,   .        .  5 

not  to  be   compelled,  in   criminal  cases,  to  be  a  ■witness 

against  himself, 5 

not  be  deprived  of  life,  liberty,  or  property,  without  due 
course  of  law,        .         .         .         .         .         .         .    _     •  5 

private  property  shall  not  be  taken  for  public  use  without 
just  compensation,    ........       5 

that  the  accused,  in  criminal  prosecutions,  shall  enjoy  the 
right  of  a  speedy  public  trial  by  an  impartial  jury  of  the 
vicinage ;  and  the  means  necessary  for  his  defence,     .  6 

that,  in  civil  cases,  facts  tried  by  a  jury  shall  only  be  re- 
examined acconling  to  the  rules  of  the  common  law,         .       7 
that,  in  suits  at  common  law,  where  the  value  shall  exceed 
twenty  dollars,  the  right  of  trial  by  jury  shall  be  pre- 
served, .........  7 

that  excessive  bail  shall  not  be  re(iuircd,  excessive  fines  im- 
posed, nor  cruel  or  unusual  punishments  inflicted,     .        .      8 


CONSTITUTION    OF    THE    UNITED    STATES. 


59 


Biffhts,  that   tlie  enumeration  of  certain,  shall  not  operate,  con- 
structively, against  the  retained  rights,           ...  9 
Rules,  each  House  shall  determine  its  own, 1 


Senate  of  the  United  States,  composed  of  two  senators  from  each 
State,    .......... 

how  chosen,  classed,  and  terms  of  service,     .... 

qualifications  of  members,  thirty  years  of  age,  nine  years  a 

citizen,  and  an  inhabitant  of  the  State, 
shall  choose  their  officers,  except  the  president,   . 
shall  be  the  judge  of  the  elections,  returns,  and  qualifications 
of  its  members,      ........ 

■what  number  shall  be  a  quorum, 

any  number  may  adjourn,  and  compel  the  attendance  of 
absentees,     ......... 

may  determine  its  rules,       .         . 

may  punish  or  expel  a  member, 

shall  keep  a  journal,  and  publish  the  same,  except  parts  re- 
quiring secrecy,        ........ 

shall  not  adjourn  for  more  than  three  days,  nor  to  any  other 

place  without  the  consent  of  the  other  house, 
one  fifth  of,  present,  may  require  the  yeas  and  nays,    . 
may  propose  amendments  to  bills  for  raising  revenue, 

shall  try  impeachments, 

their  judgments  only  to  extend  to  removal  from  oflice,  and 
to  disqualify  from  any  other,  ..... 

members  of,  shall  receive  a  compensation,  to  be  ascertained 
by  law,     .......... 

privileged  from  arrest,      ....... 

shall  not  be  questioned  elsewhere  for  any  speech  or  debate 
in  the  house,     ......... 

shall  not  be  appointed  to  ofiiccs  of  the  United  States,  created, 
or  whose  emoluments  shall  have  been  increased  during  the 
terms  for  which  they  were  elected,  .... 

Seyiators  and  Representatives,  elections  of,  how  prescribed, 

Senator  shall  not  be  an  elector  of  President, 

Slaves  —  See  Persons  held  to  service. 

Speaker,  how  chosen,       ......... 

States,  prohibited  from  — ■ 

entering  into  any  treaty,  alliance,  or  confederation, 

granting  letters  of  marque, 

coining  money, 

emitting  bills  of  credit,         ....... 

making  any  thing  a  tender  but  gold  and  silver  coin, 
passing  bills  of  attainder,  ex  post  facto  laws,  or  laws  impair- 
ing contracts, 

granting  titles  of  nobility, 

laying  impost  or  duties  on  imports  and  exports  for  their  own 
use,  ........... 

laying  duties  on  tonnage,  without  the  consent  of  Cono-ress, 
keeping  troops  or  ships  of  war,  in  time  of  peace,       .  "     . 
entering  into  any  agreement  or  contract  with  another  State, 
or  a  foreign  power,  ........ 

engaging  in  war,  unless  invaded,  or  in  imminent  dano-er, 
new,  may  be  admitted  into  the  Union,      .         .         .  °    . 
may  be  formed  within  the  jurisdiction  of  others,  or  by  the 
junction  of  two  or  more,  with  the  consent  of  Congress  and 
the  Legislatures  concerned,      .        .        .        .  °     .        .4 


60 


INDEX   TO   THE   CONSTITUTION   OF   THE   UNITED    STATES. 


Slates,  Judges  of,  bound  to  consider  treaties,  the  constitution,  and 

the  laws  under  it,  as  supreme,        .....  61 

majority  of  all  necessary  to  the  choice  of  President,      .         .       2         1 
each  to  be  guarantied  a  republican  form  of  government; 
protected  against  invasion  ;  and  secured,  upon  application, 
against  domestic  violence,     ......  44 

Supreme  Churl  —  See  Court. 

T. 

Tax,  capitation  or  direct,  shall  be  laid  only  in  proportion  to  census,  1  9 

Tax,  on  e.xports  from  a  State,  prohibited,        .....  1  9 

Taxes,  direct,  shall  be  apportioned  according  to  representation,  .  1  2 
Territory,  or  property  belonging  to  the  United  States,  Congress 

may  make  rules  concerning,         ......  4  3 

Teal,  religious,  shall  not  be  required, 6  3 

Titles  —  See  Nohilily 1  9 

TWe,  from  foreign  State — See  Prese?!( 19 

Treason,  defined, .33 

two  witnesses,  or  confession,  necessary  for  conviction,       .  3  3 

punishment  of,  may  be  prescribed  by  Congress,  with  one 

limitation, 3  3 

or  other  crime,  persons  charged  with  in  one  State,  and  flee- 
ing into  another,  shall,  on  demand,  be  dehvercd  up,      .  4  2 
Treasury,  money  drawn  from,  only  by  appropriations,     ...  1  9 
Treaties,  the  supreme  law, 6  2 

V. 

Vacancies,  happening  during  the  recess  of  the  Senate,  may  be  filled 

temporarily  by  the  President, 2         2 

in  representations  in  Congress,  how  filled,         ...  12 

Vessels  to  enter,  clear,  and  pay  duties  in  Ike  States  in  which  they 

arrive,  or  from  which  they  depart,    .....       1         9 

Vice-President  of  the  United  States  to  be  President  of  the  Senate, 
excent  when  exercising  the  office  of  President  of  the  United 

States, 18 

how  elected, 2        1 

and  12th  amendment, 
qualifications  for,  1 2th  amendment. 

shall,  in  certain  cases,  discharge  the  duties  of  President,  .  2         1 

may  be  removed  by  impeachment, 2         4 

Fo/e  o/ one  7/o«se,  requiring  concurrence  of  the  other,        .         .  17 

See  Resolution. 

W. 

Warrants  for  searches  and  seizures,  when  and  how  they  shall  issue, 

4  th  amendment. 

Witness,  in  criminal  cases,  no  one  compelled  to  be  against  himself, 

Sth  amendment. 


REVISED    CODE. 


STATE   OF   NORTH   CAROLINA. 


IN   THE  YEAR   OF    OUR   LORD    ONE   THOUSAND   EIGHT   HUNDRED   AND 
FIFTY-FOUR. 


AN    ACT 


FOR    REVISING   AND    CONSOLIDATING    THE    PUBLIC 
AND  GENERAL  STATUTES  OF  THE  STATE. 


Whereas,  it  is  expedient  tiiat  the  Public  and  General 
Statutes  of  the  State  should  be  consolidated  and  arrano-ed 
in  proper  titles,  chapters,  and  sections;  and  that  the  whole 
body  of  the  laws  should  be  rendered  as  concise  and  intel- 
ligible as  possible :  — 

Therefore, 

Be  it  enacted  by  the  General  Assembly  of  the 
State  of  North  Carolina,  and  it  is  hereby  enacted  by  the 
authority  of  the  same,  in  manner  and  form  following,  that 
is  to  say  :  — 


64 


ABATEMENT   OF   SUITS. 


[Chap.  1. 


CHAPTER    1, 


ABATEMENT    OF    SUITS. 


Section 

1.  Suits  not  to  abate  by  death  or  mar- 

riage of  parties,  but  may  be  revived 
within  two  terras  thereafter.  In 
certain  cases  longer  time  allowed  for 
revivor. 

2.  Husband   made  party,  to  give   secu- 

rity for  costs. 

3.  On  marriage  of  yemc  defendant,  hus- 

band made  party. 

4.  Not  to  abate  by  death  of  executor  or 

administrator,  plaintiff  or  defendant. 

5.  Action  of  ejectment,  on  death  of  de- 


Section 

fendant,  may  be  revived  against  his 
heirs  or  devisees. 

6.  Court  may  appoint  guardians  for  in- 

fant defendants  in  ejectment. 

7.  How  sei-vice  to  be  made  on  heirs  or 

devisees  out  of  State. 

8.  Suits  allowed  for  injuries  where  death 

ensues. 

9.  Same  subject. 

10.  How  brought  —  Rule    for    assessing 

damages  —  Time  for  bringing  suit. 

11.  Who  entitled  to  damages. 


Suits  not  to  1.  No  action,  suit,  petition,  bill  in  equity,  or  information  in 

abate  by  death    ^         of  a  bill  in  equity,  or  other  proceeding,  of  whatever 

or  marriage  of  """"'^       '^  i.;''  t„      j„.„ 

parties,  but  nature,  brought  to  recover  or  obtani  money,  property,  or  dam- 
within^vo'"''"'  ag^S'  or  to  have  relief  of  any  kind  whatever,  whether  the 
terms" there-  same  be  at  law  or  in  equity,  except  suits  for  penalties,  and 
'''''^'■-  for  damages  merely  vindictive,  shall  abate  by  reason   of  the 

death  of  either  party,  or  by  the  marriage  of  the  plaintiff /ewe, 
but  the  same  may  be  carried  on  by  the  heirs,  executors,  and  ad- 
ministrators of  the  deceased  party,  and  by  the  husband  of  the 
In  certain        femc  plaintiff:  Provided,  however,  that  application  be  made  to 
tor'aUowcd     the  court  wherein  the  process  is  pending,  within  two  regular 
fOT  rovivOT°—   terms  of  the  court  after  such  death  or  marriage ;  except  that, 
2* 3^10  ii'"^'in  case  of  a  contest  about  the  grant  of  administration,  or  the 
'  '     '     '       probate  of  the  will  of  such  deceased  person,  such  action,  suit, 
petition,  bill  in  equity,  information,  or  other  process  may  be 
carried  on,  on  ap]:)lication  at  the  term  next  after  the  final  deter- 
mination of  such  contest. 
Husband  made      2.  The  husband  of  the  feme  plaintiff  shall,  on  becoming  a 
leluut''ir'^    party,   execute   his  bond,  with  security,  for  the  payment   of 
costT-^R.'^S.    costs,  as  in  other  cases  of  failure  to  prosecute  with  effect,  and 
"  '  °  ""  thereupon  the  security  originally  given  for  that  purpose  shall 

be  vacated  :  And,  on  the  bond  so  given,  like  remedy  shall  be 
hud,  and  in  like  manner,  as  on  bonds  executed  on  the  issuing 
of  writs. 
On  marriage  of,  3.  Whenever  a/cOTC  sole  defendant  shall  marry,  pending  the 
{Indmade  '  suit,  her  husband  may  be  made  party  defendant,  if  the  plain- 
party. -R.S.  tiff  shall  so  clioose,  and  the  suit  afterwards  shall  proceed 
0.  2,  s.  5.         against  such  J'ctiie  and  her  husband. 

Not  to  abate  by  4.  No  actiou,  suit,  or  other  proceeding,  brought  as  aforesaid, 
death  of  execu- 


c.  2,  s.  5. 


Chap.  1.]  abatejient  of  suits.  65 

to  which  an  executor  or  administrator  is  party,  plaintiff  or  de-  tor  or  adminis- 
fendant,  shall  abate  by  the  death  of  such  executor  or  adminis-  de'ft"l''R's' 
trator,  but  the  same  may  be  revived  by  or  against  the  admin-  cf2,'s.  6.' 
istrator  de  bonis  non,  or  the  executor  of  the  executor  of  such 
deceased  party,  under  the  rules  and  regulations   above   pre- 
scribed. 

5.  No  action  of  ejectment  shall  abate  by  the  death  of  the  Action  of  eject- 
defendant  ;  but  the  same  may  be  revived  bv  serving  on  his  T'J'v™  ''"'"'* 

I'll  J       -  , ,  ,.''...  ^  or  deft.,  may 

neirs  at  law,  or  devisees,  or  the  guardian,  withm  two  terms  be  revived 
after  his  decease,  a  copy  of  the  declaration  filed  in  said  ac-  hffr'"or  de 
tion,  together  with  a  notice  to  the  heirs  or  devisees,  or  their  vSees?—R.  s. 
guardian,  if  they  be  minors,  to  appear  and  defend  said  suit,  "■  ^'  '•  ^■ 
and  after  such  service  the  suit  shall  stand  revived,  and  shall  be 
proceeded  on  in  the  same  manner  as  if  the  defendant  were 
living. 

6.  Whenever  any  of  the  heirs  at  law  or  devisees  of  such  Comtraayap- 
defendant,  to  whom  the  land  in  dispute  shall  descend  or  be  point  guardians 
devised,  shall  be  minors  without  guardian,  the  court  wherein  in'ejectmen't!^ 
the  said  suit  is  pending  shall,  upon  application,  appoint  a  ^-  ''^  <^-  2,  s.  s. 
guardian  to  defend  the  suit  on  their  behalf. 

7.  Whenever  any  of  the  heirs  or  devisees  shall  reside  out  How  service  to 
of  the  State,  the  sheriff,  or  other  officer,  to  whom  the  declara-  be  made  on 
tion  and  notice  shall  have  been  issued,  shall  state  the  fact  in  seeroutrfThe 
his  return;  whereupon,  an  advertisement  of  such  notice  shall  State.  — K.S. 
be  made  for  six  weeks  in  some  newspaper,  and  thereupon  they  ^'  ^'  ^'  ^' 
shall  be  deemed  to  have  been  duly  served  with  a  declaration 

and  notice,  and  the  suit  shall  proceed  accordingly. 

8.  Whenever  the  death  of  a  person  shall  be  caused  by  the  Suits  allowed 
negligence  or  default  of  any  railroad  or  steamboat  company,  [°hg°J'Ji™f, 
or  of  any  steamboat  or  stage-coach  proprietor,  in  this  State,  ensuS,  iS54,  c. 
and  the  neglect  or  default  is  such  as  would  have  entitled   the  ^^^  '•  ^'  2.  3, 4- 
party  injured  to  maintain  an  action  and  recover  damages  in 

respect  thereof,  if  death  had  not  ensued,  then  and  in  'every 
such  case,  the  corporation  which  would  have  been  liable,  if 
death  had  not  ensued,  shall  be  liable  to  an  action  for  dam- 
ages, notwithstanding  the  death  of  the  person  injured. 

9.  Whenever  the  death  of  a  person  shall  be  caused  by  the  Same  subject. 
wrongful  act  of  another  person,  and  the  wrongful  act  is  such 

as  would  have  entitled  the  party  injured  to  maintain  an  ac- 
tion and  recover  damages  in  respect  thereof,  if  death  had  not 
ensued,  then  and  in  every  such  case,  the  person  who  would 
have  been  liable,  if  death  had  not  ensued,  shall  be  liable  to 
an  action  for  damages,  notwithstanding  the  death  of  the  per- 
son injured,  and  although  the  death  shall  have  been  caused 
under  such  circumstances  as  amount  in  law  to  felony. 

10.  Every  such  action  shall  be  brought  by  and  in  the  name  How  .service  to 
of  the  personal  representative  of  the  deceased,  and  the  amount  J^"'^  loriusstss- 
recovered  shall  be  disposed  of  according  to  the  statute  for  the  '"S  dam^g-^s. 
distribution  of  personal  property  in  case  of  intestacy ;  and  in 

every  such  action  the  jury  may  give   such  damages  as  they 

shall  deem  fair  and  just,  with  reference  to  the  pecuniary  in- 

6' 


AGRICULTURE   AND    GEOLOGY. 


[Chap.  2. 


Time  for  bring- jury  resulting  from  such  death:   Provided,  that  every  such 
ing  suit.  action  slmll  be  commenced  within  one  year  from  the  death  of 

such  deceased  person. 
"WTio  entitled  to      11.  The  amount  recovered   in    every  such   action  shall  be 
damages.  £qj  ^j^g   exclusive  and  sole   benefit  of  the  widow   and  issue 

of  the  deceased,  in  all  cases  where  they  are  surviving. 


Sect.  1.  What  suits  may  he  revived:  overflowing  lands,  i  Hawks,  73;  on  official  bond, 
on  death  of  relator,  3  Ire.  294.  Wliat  may  not:  scire  facias  v.  sheriff,  13  Ire.  483;  waste, 
3  Mur.  511;  harboring  slaves,  Conf.  R.  72,  lb.  95;  seduction,  4  Hawks,  133.  i/uio  revived: 
death  after  appeal,  1  Hawks,  16.  By  whom:  tresjmss  on  lands,  3  Dev.  153.  Til  vhal  time: 
i  Ire.  9,  1  Mur.  411,  4  Ire.  79,  2  C.  L.  R.  249.  How  abated  if  not  revived,  1  Jlur.  161, 
8  Ire.  322. 

Sect.  3.  1  Mur.  161. 

Sect.  5.  Death  of  lessor  of  plaintiff,  13  Ire.  489,  lb.  43 ;  death  of  defendant,  i  Ire.  79, 
11  lb.  121,  Bus.  52. 


CHAPTER    2. 


AGRICULTURE  AND   GEOLOGY. 


OECTION 

1.  North  Carolina  State  Agricultural  So- 

ciety incorporated — Amount  of  prop- 
erty which  may  be  held. 

2.  Shall  elect  president  and  other  offi- 

cers. 

3.  Shall  provide  a  place  for  holding  an- 

nual fairs. 

4.  Fifteen  hundred  dollars  per  annum  ap- 

propriated on  condition. 

5.  Money  how  applied. 

6.  County  societies  how  formed  —  What 

amount  of  property  they  may  hold. 

7.  How  organized — to  continue  during 

the  will  of  the  legislature. 

8.  When  organized,  it  shall  be  certified, 

and  certificate  filed  in  clerk's  office 
—  Entitled  to  fifty  dollars  from  the 
public   treasurer  on  certain  coudi- 


Section 

tions —  Only  one  society  in  a  county 
entitled. 

9.  Funds   of  society  to  be  appropriated 

in  premiums,  etc. 

10.  Shall  transmit  to  the  public  treasurer 

annual  statement  of  money  received 
from  State,  and  from  members,  and 
of  expenses. 

11.  Shall  annually  publish   statement   of 

their  experiments,  reports,  etc. 

12.  Secretary  to  keep    a  record  of  pro- 

ceedings. 

13.  Governor  to  appoint  a  geological  sur- 

veyor. 

14.  Duty  of  the  surveyor. 

15.  Five  thousand  dollars  per  annum  ap- 

propriated for  survey. 

10.  Surveyor  to  deliver  lectures. 


North  Carolina  1.  TiiE  North  Carolina  Agi-icultural  Society  as  organized 
f '"'f  Soifirt  "'"  ^y  ^  voluntary  association,  on  tlic  eighth  day  of  October,  a.  D. 
incorporated.    One   thousand   eight   hundred    and    tifty-two,  at    the    city  of 

Raleigh,  shall  be  and  the  same  is  hereby  incorporated  under 
Amount  of  the  name  and  style  of  "  Tlic  North  Carolina  Agricultural  So- 
may beheld.'—  ciety,"  and  may  take  and  hold  real  and  personal  estate  of  the 
1852,0.1,8.1,3.  value  of  fifty  thousand  dollars  and  no  more,  for  the  purposes 

hereinafter  specified. 


Cm\.P.  2.]  AGRICULTURE   AND    GEOLOGY.  67 

2.  The  said  society  shall  annually  elect  a  president,  four  Shall  elect 
vice-presidents,  treasurer,  recording  "secretary,    correspondino- f'f '''''"' """^ 
secretary,  and  such  other  officers  as  may  be  deemed  necessary^  i8ltc!f,7X 
all   of  whom  shall  hold  their  offices  until  successors  are  ap- 
pointed. 

3.  It  shall  be  the  duty  of  the  North  Carolina  Agricultural  Shall  provide  a 
Society  to  provide  a  place  for  the  holding  of  annual  fairs,  in  ?!""„ '°''ij°''^" 
order  that  the  citizens  may  be  encouraged  by  exhibitions,  pre-  fous".""" 
rniums,  and  other  means  to  develop  and  improve  the  produc- 
tions of  agriculture,  and  every  species  of  native  industry:  and 

to  this  end,  and  for  these  great  and  valuable  purposes,  and  to 
no  other,  shall  the  said  society  apply  all  the  funds  which  by 
any  means  they  may  acquire. 

4.  It  shall  be  the  duty  of  the  public  treasurer  to  pay  to  the  Fifteen  hun- 
treasurer  of  the  North  Carolina  Agricultural  Society,  on  the '''''''' '•""""P^' 
first   Monday  of  October,  during  each   and  every  year,  out  of  pl-iS  ^00^ 
any  moneys  not   otherwise   appropriated,  the   sum   of  fifteen '''"''"•  ~"^*' 
hundred  dollars,   to   be  disposed  of  in   the    payment  of  pre- "'  ^' ''  ^' 
miums,  as   hereinafter  directed:  Provided,  however,  that  the 
treasurer  of  the  said  society  shall  first   produce   a  certificate 

from  the  president  thereof,  showing  that  during  the  past 
twelve  months  the  like  sum  has  been  raised  by  the  said  so- 
ciety for  the  same  purposes. 

5.  The  money  hereby  appropriated  shall  be  applied,  under  Money  hon-np. 
the  dn-ection  ol  said  society,  to    the    payment  of  premiums  !,'",'V^*^*''=- 
upon  agricultural  productions,  implements  of  husbandry,  and   '''   ' 
domestic   animals,    and    to    such  other  purposes   as   may,  in 

the  judgment  of  said  society,  be  calculated  to  advance  the  in- 
terest of  agriculture  and  manufactures. 

6.  Any  number  of  resident  persons,  not  less  than  ten,  may  County  socie- 
associate  together  in  any  county,  under  written    articles    of'"''''"^ 
association,  subscribed  by  the  members  thereof,  and  specilyino- '°'™'"'" 

the  object  of  the  association,  to  encourage  and  promote  a^^ri^ 

culture,  domestic  manufactures,  and  the  mechanic  arts,  under 

such  name  and  style  as  they  may  choose,  and  thereby  become 

a  body  corporate  with  all  the  powers  incident  to  such  a  body,  What  amount 

and  may  take  and  hold  such  property,  both  real  and  personal,  "f  P^perty 

not  exceeding  ten  thousand  dollars  in  value  as  may  be  needful  -i'ssl^i'c.  2  s! 

to  promote  the  objects  of  their  association.  i-  ^■ 

7.  Such  society  shall  be  organized  by  the  appointment  of  a  Ho«-  organized 
president,  Uvo  vice-presidents,  a  secretary  and  treasurer,  and  T'?  rthL""  m 
such  other  officers  as  they  may  deem  proper,  who  shall  there-  Tth^i%^Z 
atter  be  chosen  annually,  and   hold  their  places  until  others  l^'T^^^^' ■=• 
shall  be  appointed.     And  the  society  may  from  time  to  time,  "' ''   ' 

on  such  conditions  as  may  be  prescribed,  receive  other  mem- 
bers of  the  corporation,  which  shall  continue  as  lono-  as  there 
are  ten  members,  during  the  will  and  pleasure  of  the  legisla- 
ture. ^ 

8.  When  such  society  shall  be  fully  organized,  the  orgauiza-  When  or^an- 
tion  thereof  shall  be  certified  by  the  president  and.  signed  by  j""'-  i'.^"^'" 
the  secretary  to  the  county  court,  and  thereupon  the  court  mJcmm  ate 


68  AGRICULTURE   AND    GEOLOGY.  [ChAP.  2. 

filed  in  clerk's  shall  Order  the  same  to  be  filed  in  the  office  of  the  clerk  and 
office.  there  kept;  and  the  clerk,  under  the  seal  of  the  court,  shall 

certify  a  copy  of  the   same,  together  with  the  order  of  the 
court,  to  the  treasurer  of  the  State,  who,  if  by  the  said  certifi- 
cate, it  shall  appear  to  him  that  such  society  has  been  duly 
organized,  according  to  this  chapter,  and  it  shall  likewise  be 
made  appear  to  him  by  the  certificate  of  the  treasurer  of  said 
society,  signed  by  the  president,  and  certified  by  the  clerk  of 
the  court  under  the  seal  thereof,  that  the  sum  of  fifty  dollars 
has  been  actually  paid  to  said  society  by  the  members  thereof, 
within  one  year  preceding,  for  the  sole  benefit  of  such  society, 
Entitled  to  S50  shall  pay  to  the  treasurer  of  said  society,  fifty  dollars,  out  of 
ur™on''certaiu  th*^  public  treasury,  for  the  like  sole  use  and  benefit;  and  such 
conditions.        payment  shall  be  annually  made  by  the  treasurer  of  the  State 
on  the  terms  and  conditions  above  and  hereinafter  specified  : 
Only  one  soc'y  Provided,  however,  that  only  one  society  for  each  county  shall 
county'!-is52,  be   entitled  to  the  benefits  of  this  chapter :   and  the  county 
c.  2,  s.  3,  G.     '  court  in  case  of  a  conflict  between  two  claimants,  shall  deter- 
mine which  shall  be  the  corporate  body  for  the  county. 
Funds  of  soc'y      9.  All  moneys  SO  subscribed,  as  well  as  that  received  from 
Sed^in''piemi-*^'^6  State  treasury  as   herein  provided,  shall,  after  paying  the 
Iiras,  etc.—       necessary  incidental  expenses  of  such  society,  respectively,  be 
1852,  c.  2,  s.  7.  annually  paid  out  for  premiums  awarded  by  such  societies,  in 
such  sums,  and  in  such  way  and  manner  as  they  severally, 
under  their  by-laws,  rules,  and  regulations,  shall  direct,  on  such 
live   animals,  articles  of  production,  and  agricultural    imple- 
ments   and    tools,    domestic    manufactures,    mechanical    im- 
plements, tools,    and    productions,  as  are  of  the  growth  and 
manufacture  of  the   county,  and   also   on    such  experiments, 
discoveries,  or  attainments  in  scientific  or  practical  agriculture, 
as  are  made  within  the  county  wherein  such  societies  are 
respectively  organized. 
Shall  transmit      10.  Each  agricultural  society,  entitled  to  receive  moncy  from 
fnnua'l'stl'ttm't  the  State  treasury,  shall,  through  its  treasurer,  transmit  to  the 
of  money  rec'd  treasurer  of  the  State,  in  the  month  of  December  or  before,  a 
membCT^s^^ind   statement  of  the  money  received  from  the  State,  together  with 
ofexperiments.  the  amount  received  from  the  members  of  the  society  for  the 
— 1852,  c.  2,  s.  p^^^^jji^g  year,  a  statement  of  the   expenditures  of  all  such 

sums,  and  the  number  of  the  members  of  said  society. 
Shall  annually      11.  Each   agricultural    society,    receiving    money  from    the 
STcnteVtheir    ^tate  as   aforesaid,  shall,  in  each   year,  publish,  at  their  own 
experiments,     expense,  a  full  statement  of  their  experiments,  and  improve- 
I852"c' 2**i"'9    ments,  and  reports  of  their  committees,  in  at  least  one  news- 
""'  "'"  '  paper  of  the  State;  and  evidence  that  the  requirements  of  this 
chapter  have  been  complied  with,  shall  be   furnished  to  the 
State  treasurer,  before   he  shall  pay  to  such  society  the  said 
sum  of  fifty  dollars  for  the  benefit  of  such  society  for  the  ne.xt 
year. 
Sec'ytokcepa      12.  The  secretary  of  such  society  shall  keep  a  fair  record  of 
ceed^ngf-''™"  its  proceedings  in  a  book  jirovided  for  that  purpose,  which  may 
1852,  c"  2,  s.  6.-  be  read  in  evidence  in  suits  wherein  the  corporation  may  be  a 
party. 


Chap.  3.]  amendment  of  process,  etc.  69 

13.  The  governor  shall  appoint  a  suitable  person  to  conduct,  Gov.  to  appoint 
under  the  supervision  of  himself  and  the  board  of  literature,  a.flfQ^''"^]^^^''-' 
geological,  mineralogical,  botanical,  and  agricultural  survey  'of  '  "'  ^^' ''  ^' 
the  State. 

14.  The   person  appointed  shall  examine  and  survey  each  Duty  of  the 
and  every  county  of  the  State  and  ascertain  the  different  geo-  igiT^^gT 
logical  formations   of  each  county  and  section  of  the   State;     "  '"'  ''''  ' 
the  nature,   character,  and  value  of  its   minerals ;  the  nature 

and  character  of  its  soils,  and  the  best  mode  of  improving  the 
same ;  the  nature  and  kind  of  its  productions,  and  thei?  po- 
sition and  relative  value ;  its  facilities  for  manufactories ;  the 
extent  and  value  of  its  water  power ;  the  character  and  value 
of  its  botanical  productions;  the  character  and  value  of  its 
timber;  and  all  other  facts  connected  with  the  subjects  of 
geology,  mineralogy,  botany,  and  agriculture  which  may  tend 
to  a  full  development  of  the  resources  of  the  State ;  and  such 
person  is  authorized  to  employ  as  many  proper  agents  and 
assistants,  to  be  approved  by  the  governor,  as  may  be  neces- 
sary to  enable  him  speedily  and  successfully  to  accomplish  the 
objects  committed  to  his  charge;  and  he  shall,  from  time  to 
time,  communicate  to  the  governor,  to  be  by  him  communi- 
cated to  the  legislature,  a  report  or  reports,  in  writing,  settino- 
forth  fully  the  results  of  his  survey ;  which  reports  shall  be 
published  under  the  supervision  of  the  governor  and  board  of 
literature. 

^'^'c'^^^  expenditures  incurred  by  said  survey  shall  not  ex- S5,ooo  per ann. 
ceed  five  thousand  dollars  per  annum,  to  be  paid  by  the  public  '!PP™P'"'a'e'l 
treasurer,   upon    the   warrant    of    the    governor,    out   of  anywVoTZ'az^.s. 
moneys  in  the  treasury  not  otherwise  appropriated. 

16.   The   person   making  such   survey  shall  deliver  lectures  Surveyor  to  de- 
upon   the  subjects   committed  to  his  charge,  in   the  villao-es  I'L^'n ''"'""'®'- 
through  which  he  shall   pass:    Provided,  that  he   shall   not    ""*' '■''''•  ■•• 
thereby  delay  his  other  duties. 


CHAPTER   3, 


AMENDMENT  OF  PROCESS,  ETC 
Section 

1.  AU  proceedings  may  be  amended  be- 

fore judguieut. 

2.  Adverse  party  may  answer  amend- 

ments in  substance. 

3.  Formal  defects  may  be  amended  after 

judgment. 

4.  Keturns    of    officers,    etc.,    may  be 

amended  in  matters  of  fonn. 

5.  Certain  defects  cured  after  verdict. 

6.  Sucb  and  like  defects  to  be  amend- 


Sectiox 

ed,  etc.,  in  whatever  court  the  record 
may  be. 

7.  No  amendment  to  be  made  without 
order  of  court. 

6.  On   demurrer,   formal   defects  disre- 
garded, unless  specially  expressed. 

9.  And  may  be  amended. 
10.  The  provisions  of  this  chapter  shall 
extend  to  all  actions  and  proceed- 
ings in  any  court  of  law. 


1.    The  court  in  which  any  action  shall  be  pendin",  shall  All  proceedings 
have  power  to  amend  any  process,  pleading,  or  proceeding  in  '"''y '''=  =""^"3- 


70  AMENDMENT   OF   PROCESS,   ETC.  [ChAP.    3. 

ed  before  jntig- such  actioii,  either  in  form  or  substance,  for  the  furtherance  of 
™«"*p^-  ^•'=- justice,  on  such  terms  as  shall  be  just,  at  any  time  before  judg- 
ment rendered  thereon. 
Adverse  party  2.  If  such  amendment  be  made  to  any  pleading  in  matter 
Sidments  in  °'^  substance,  the  adverse  party  shall  be  allowed  an  opportu- 
snbstiiuce.— E.  nity,  according  to  the  course  and  practice  of  the  court,  to  an- 
S.  c.  3,  s.  1.  g-^ver  the  pleading  so  amended. 
Formal  defects       3.    After  judgment  rendered  in  any  cause,  any  defects  or 

may  be  amend-  imperfections  in  matter  of  form,  contained  in  the  record,  plead- 
ed atter.iudg-     ^      f  j_  XL  V  •  U 

ment.— E.  S.c.  ings,   process,  entries,  returns,   or  other  proceedings  in  such 
^'  *•  ^-  case,  may  be  rectified  and  amended  by  the  court  in  affirmance 

of  the  judgment,  so  that  said  judgment  shall  not  be  reversed 
or  annulled;  and  any  variance  in  the  record  from  any  process, 
pleading,  or  proceeding  had  in  such  court,  shall  be  reformed 
and  amended  according  to  such  original  process,  pleading,  or 
proceeding. 
Eetumsofoffi-  4.  All  returns  made  by  any  sheriff  or  other  otTicer,  or  any 
r'^ameudeTr  *^°"'"t>  °^  Subordinate  tribunal,  to  any  court,  may  be  amended 
m\tt"rrof  '°  in  matter  of  form,  by  the  court  to  which  such  returns  shall  be 
form.— E.  S.  c.  made,  in  its  discretion,  as  well  before  as  after  judgment. 
Certain  defects  5.  When  a  verdict  shall  have  been  rendered  in  any  cause, 
to-E^'s^'^'^'  the  judgment  thereon  shall  not  be  stayed,  nor  shall  the  judg- 
3,  s  5.  '  '  ment  upon  such  verdict,  or  any  judgment  upon  confession, 
default,  nihil  dicit,  or  non  sum  informatiis  be  reversed,  impaired, 
or  in  any  way  affected  by  reason  of  the  following  imperfec- 
tions, defects,  matters,  or  things,  or  any  of  them  in  the  plead- 
ings, process,  proceedings,  or  record,  namely  :  for  want  of  any 
writ,  original  or  judicial ;  for  any  default  or  defect  in  process, 
or  for  misconceiving  any  process,  or  awarding  the  same  to  a 
wrong  oflScer,  or  for  the  want  of  any  suggestion  for  awarding 
process,  or  for  any  insufficient  suggestion;  for  any  imperfect 
or  insufficient  return  of  any  sherifl'  or  other  officer ;  or  tliat  the 
name  of  such  officer  is  not  set  to  any  return  actually  made  by 
him  ;  for  any  variance  between  the  original  writ,  bill,  plaint, 
and  declaration,  or  between  either  of  them ;  for  any  misplead- 
ing, or  miscontinuance  or  discontinuance,  insufficient  plead- 
ing, or  jeofail,  or  misjoining  of  issue ;  for  the  want  of  any 
warrant  of  attorney  by  either  party;  for  any  party  under 
twenty-one  years  of  age  having  appeared  by  attorney,  if  the 
verdict  or  judgment  be  for  him;  for  the  want  of  any  allega- 
tion or  averment,  on  account  of  which  omission,  a  special 
demurrer  could  have  been  maintained ;  for  omitting  any  alle- 
gation or  averment  of  any  matter,  without  proving  which,  the 
jury  ought  not  to  have  given  such  verdict;  for  any  mistake  in 
the  name  of  any  party  or  person,  or  in  any  sum  of  money,  or 
in  the  description  of  any  pro]5erty,  or  in  the  reciting  or  stating 
any  day,  month,  or  year,  when  the  correct  name,  time,  sum,  or 
description,  shall  have  been  once  rightly  alleged  in  any  of  the 
pleadings  or  proceedings ;  for  a  mistake  in  the  name  of  any 
juror  or  officer;  for  any  informality  in  entering  a  judgment,  or 


Chap.  3.]  amendment  of  process,  etc.  7I 

making  up  the  record  thereof,  or  in  any  continuance  or  other 
entry  upon  such  record;  for  any  other  default  or  negligence  of 
any  clerk,  or  officer  of  the  com-t,  or  of  the  parties,  or  their 
counsellors  or  attorneys,  by  which  neither  party  shall  have 
been  prejudiced. 

6.  The  omissions,  imperfections,  defects,  and  variances,  in  Such  and 
the  precedmg  section  enumerated,  and  all  others  of  the  like  ''^"^  '^"^'"'^^ '" 
nature,  not  being  against  the  right  and  justice  of  the  matter  et^Xt'er 
ot  the  suit,  and  not  altering  the  issue  between  the  parties  or  ?"™"'''J  ™''y 
the  trial,  shall  be  supplied  and  amended  by  the  court,  where  ^.V'  *"■ "'  ^' 
the  judgment  shall  be  given  ;  or  by  the  court  into  which  such 
judgment  shall  be  removed  by  writ  of  error  or  appeal. 

7.  No  process,  pleading,  or  record  shall  be  amended  or  im-  No  amendment 
paired  by  the  clerk  or  other  officer  of  any  court,  or  by  any  '« *"'  "■"!» 
other  person,  without  the  order  of  such  court,  or  some  other  ofcourt-R's 
court  of  competent  authority.  c.  3,  s.  7. 

_    8.  When  any  demuiTer  shall  be  entered  in  any  suit,  and  On  demunei-, 
issue  be  joined  thereon,  the  court  shall  proceed  and  <yive  judo--  5?'"™"'  '^<'^<"'^^ 
ment  according  as  the  very  right  of  the  cause  and  matter  fn  uniSfspSiiy 
law  shall  appear,  without  regarding  any  defect  or  other  imper-  "Pi^i^f  ^d.-R. 
fection  in  any  process  or  pleading,  so  as  sufficient  matter  ap-     "'     '" 
pear  in  the  pleadings  to  enable  the  court  to  give  judgment 
according  to  the  very  right  of  the  cause,  unless  such  defect  or 
other  imperfection  be  specially  expressed  in  the  demurrer. 

9.  After  issue  shall  be  joined  on  any  demurrer,  the  court  And  may  be 
shaU  amend  every  such  defect  or  other  imperfection  in  any  ""''"f  ^.-R. 
process  or  pleading  in  the  last  section  mentioned,  other  than     ''     '' "' 
those  which  the  party  demurring  shall  specially  express  in  his 
demurrer. 

10.  The  provisions  of  this  chapter  shall  extend  to  all  the  The  provisions 
courts  ot  the  btate,  from  the  Supreme  Court  down  to  the  °''"""'='"'P'«'^ 
lower  tribunals,  and  to  all  actions  in  the  said  courts  of  law,  aluctionTand" 
and  to  all  suits  for  the  recovery  of  any  debt  due  to  the  State  P™<=eedings  in 
or  for  any  debt,  duty,  or  revenue,  belonging  to  the  State,  and  k^.-R^s'^'c. 
also  to  all  actions  for  penalties  and  forfeitures,  to  all  writs  of  ^''^  ^°- 
mandamus  and  prohibition,  to  aU  informations  in  the  nature 

of  a  quo  warranto,  to  writs  of  scire  facias,  and  to  the  proceed- 
ings thereon,  to  all  writs  of  error,  appeals,  and  proceedings  in 
the  nature  of  appeals. 


Sect  1.    What  amendment  maybe  made:  add  seal,  1  Ik.  ill;  new  vMntiff  2  Ire   •?44- 
^arra^Ufor  penally  i  J).  &,^.  319,  1  Jones,  436;  suggest  *att,  4  Ha";!    .cte  }«! 

346i«S^7;>l2Sjr^^^^^^^^^^ 

^Sp;Xt:'^%S!^:l^::^:i^tr^^  Ib.425,2  Jones,  as,  B„s. 
nincli  court  mm  amend,  5  Ire.  9,  2  lb.  457,  1  D.  &  B.  377,  2  Dev  E50      Leave  to 


72 


APPEALS,   ETC. 


[Chap.  4. 


CHAPTER    4. 

APPEALS,  AND  PROCEEDINGS  IN  THE  NATURE  OF  APPEALS. 


Section 

1.  Appeals  allowed  to  parties  from  coun- 

ty to  superior  court  on  giving  security. 

2.  Also  granted:  1.   From  order  appoint- 

ing or  removing  guardian.  2.  On 
probate  of  wills  and  granting  lettei-s 
of  administration.  3.  From  orders 
establishing,  etc.  roads  and  ferries. 

3.  Clerk  of  county  court  to  file  a  trans- 

cript in  superior  court.  Appeal  to 
stand  for  trial  at  first  term,  when. 

4.  Appellant  may  procure  and  file  tran- 

script. 

5.  How  to    proceed  when  vacancy    in 

superior  court  clerk's  office. 

6.  If  appellant  fail  to  file  transcript,  ap- 

pellee may  have  judgment  affirmed 
with  double  costs. 

7.  After  appeal  clerks  of  county  courts 

may  issue  subpoenas  for  witnesses. 

8.  Defendant  in  actions  of  debt,  cove- 

nant, or  assumpsit,  appealing  for  de- 
lay, to  pay  additional  four  per  cent, 
interest. 

9.  Plaintiff  appealing  and   not  recover- 

ing more  to  have  no  costs,  but  may 
be  ordered  to  pay  costs. 

10.  Bonds    for    appeal  and    prosecuting 

suit  to  be  sent  up  as  part  of  the 
record,  and  judgment  entered  upon 
them. 

11.  Appeal    not  dismissed    for  want   of 

form. 

12.  Clerk    of    superior  court  to  give   a 

receipt  for  the  transcript,  and  in 
dorse  day  of  delivery. 

13.  Shall  issue  subpoenas,  if  required. 

14.  Penalty  of   one    huudred  dollars  on 


Section 

clerks  failing  in  their  duty  in  regard 
to  appeals. 
16.  Clerks  of  superior  court  to  take  se- 
curity of  persons    suing    writs    of 
recordari. 

16.  Clerk  of  county  or  superior  court  to 

take  security  of  persons  suing  out 
certiuran. 

17.  Superior  courts    may  grant  writs  of 

error.  Proceedings  on  them.  Shall 
render  final  judgment  and  issue  exe- 
cution. 

18.  Time  for  bringing  writs  of  error. 

19.  Proviso  for  persons  under  disabilities. 

20.  Security  to  be  given. 

21.  Appeals    allowed    from    superior    to 

supreme  court,  on  giving  security. 
Summary  judgment.  Proviso  for 
insolvent  convicts. 

22.  Supreme  court  on  appeal,  to   render 

judgment  upon  inspection  of  the 
whole  record. 

23.  Appeals  allowed  at  discretion  of  the 

court  from  interlocutory  judgments 
at  law  and  in  equity. 

24.  In  such  ca.se  the  whole  cause  not  to 

be  removed;  may  proceed  with  the 
residue. 

25.  On    appeals  to  supreme  court  clerk 

and  clerk  and  master  to  file  tran- 
scripts. 

20.  On  failure  of  clerk  appellant  may:  — 
on  his  failure,  appellee  may  file  it  or 
appellee  may  obtain  certificate  of 
such  failure  and  recover  double  costs. 

27.  Any  defendant,  when  there  is  more 
than  one,  may  appeal. 


Appeals  allow-      1.  EvERY  free  person,  whether  plaintiff  or  defendant,  who 

frim  county  to  shall  be  dissatisfied  with  the  sentence,  judgment,  or  decree  of 

su^r  court  on  the  county  court,  shall  be  entitled  to  have,  unless  the  same  be 

fil'^KfT'i's'  expressly  forbidden  by  law,  an  appeal  therefrom  to  the  superior 

1.    ■■'''■'■  court  of  law  of  the  county  wherein  was  held  the  said  county 

court ;  but  before  obtaining  the  same,  the  appellant  shall  enter 

into  bond,  with   sufficient  security  for  prosecuting  the  same 

with    eil'ect,  and    for    performing  the   judgment,  sentence,  or 

decree   which  the   superior  court  may  pass  or  make  therein 

against  him. 

Also  from  order      2.   Appeals  shall  likewise  be  granted,  upon  the  terms  alore- 

appointing  or  gaid^  jn  the  following  cases:  — (1.)   To  any  person  who  may 


CnAP.    4.]  APPEALS,   ETC.  >jo 

consider  himself  agg,-ieved  by  an  order  appointing,  or  refasin<x  ,.omovin..uar 
to  appoint,  or  vacating,  or  refusing  to  vaeate,  the  guardianship  ;>>""='""" 
ol  an  orphan  or  person  non  compos  mentis.  (2.)  To  any  pei^  ^?nls'™XV^[ 
son  propounding  tor  probate  or  contesting  any  will,  or  to  any  '-"^ST 
pcrson  c  airn.ng  the  right  to  administer  the  estate  of  any  intes^  rtrr^r^ 
tate.  (d.)  i^rora  judgments  on  petitions  for  establishin<^  ferries  '•""^'i'^i'in?,eto., 
laying  out,  altering,  or  discontinuing  public  roads.  '  ZTJ^VZ 

nn'h^     T7  T  ''''P'?'  '^'^''  ^'  granted  from  the  jitdgment  *•,">>  '   V 
of  law  r,  °1    f    ?r  ^"^d  quarter-sessions  to  the  superior'court  o^^"^;^ 
o   law,  It  shall  be  the  duty  of  the  clerk  of  the  county  court  to  '^""'--'r"  ■" 
file  a  transcript  of  the  record  of  the  suit,  on  or  befoie  the  first  ^"P^™"^  <=»""• 
day  of  the  next  regular  term  of  the  superior  court,  if  there  shall  . 
be  ten  days  between  the  last  day  of  the  next  regular  term  of 
the  said  county  court  and  the  next  term  of  the  superior  court, 
and  the  appeal  shall  stand  for  trial  at  the  said  next  term  of  Appeal  to 
the  superior  court;  but  if  it  shall  so  happen  that  there  shall  n^'!!'"'"'- '"'^ 
be  less  than  ten  days,  then  the  clerk  shill  fil^  +1,1  <-  ^"ere_ snail  „,,,,ttenn 
+ii<>  v„      J     c         ;.y-)  i"tii  uit  cicik  stiall  tile  the  transcript  of  when.— K.s.c. 

lelnfih   ^^°'"'='^^'^'' °"  o"-  before  the  first  day  of  the  second '■  ^- ^■ 
tei ra  of  the  superior  court  next  after  the  appeal 

\Ji  fvl?^^'"° /'•  ^^^  Pffceding  section  shall  prevent  the  appel-  Appellant  may 
lant  trom  applying  to  the  clerk  of  the  county  court  for  a  tnn    l^™'^"''''  ^"^ 
an"fo„1af:,r,r;''"'"T  ^'''''''  ^^'^^"  be,^i.r;ditrya?t*e\::ilV.-r:.ts. 
record^nf  n  S''^"^"'''  *"•  ™^'^'°   "P   ^   f"ll  ^»d   perfect*" 

lav  afl  I  fi  F°«^-dmgs  in  the  cause;  and  within  ten 
days  afei  the  final  adjournment  of  the  term  in  which  the 
cause  shal  be  heard,  give  an  attested  copy  of  suJh  record 
with  the  taxation  of  all  costs  accrued,  to  said  appellant  if 
required;  and  shall  indorse  on  said  copy  the  day  ofda^s  on 

wEm    •  f^  'uT^r^^T   ^''''  demanded,  and^IledIyo 
wh  c  1  It  shal   be  delivered,  and  sign  his  name  as  clerk  thei^to- 
and  the  appelant  shall  file  the  same  on  or  before  the  fiSda; 
of  the  term  of  the  next  superior  court,  under  the  like  restiie- 
tions  and  provisions  as  in  the  preceding  section 

cleioJ  riT'nne'-''"''"'!  ^^all  have  happened  in  the  office  of  How  to  proceed 
clerk  of  said  superior  court,  so  that  the  appellant  cannot  file  the  -'"'»  ™™-y 
transcript  of  the  record  within  the  time  prescribed,  on  his  maE  HeS'-'r^iT" 
mg  It  appear  to  the  satisfaction  of  the  court  to  whidi  the  appeal  ^^^^tZ 
IS  returnable  that  he  had  made  application  to  the  cle       of'tTe 
coun  y  court  for  a  transcript  of  the  record,  within  time  to  have 
filed  the  same  within  ten  days  before  the  sitting  of  the  superior 
court  the  transcript  of  the  record  shall  be  filed  h.  the  said  coui" 
and  the  cause  shall  stand  for  trial  at  the  succeeding  term  ' 

ne!iec^  ?o  file  't?''     '"*  '''''"''  ^^''  ^'"""^^"P^  in  appeal,  and  if  appellant  f,.i, 
neglects   to  file  the  same   as  required  by  law,  or  shall  fail  to  *"  «'^  "■""- 
appear  and  prosecute  his  appeal,  the  appellee  shall  he  nntVfii  ^^^'ii'^^Pf  "^^ 

to  rlermnrl    f,-^^     +1  i      i     '     "'''"<-    'tpptlice  .snail  be  entitled  ni;n-,  und  have 

lo  aemancl  trom   the  clerk  a  copy  of  the  record   and  fi|p  th,..i»'is't  affirmert 

i^^tottS  Wr  aj^ir*   '^  ^ffi-d,with  double-- 

Summon\vS'  °^   •''''    n"""*^  ""'"'^^   "^^  i^^'"''  subpcrnas  to  AOer  appeal 
summon  witnesses  in  all  cases   of  appeal,  returnable  to  the '■'''^r'" '°"°'^ 

iji  »  1         ;  iv^    iii^  courts  may 


74  APPEALS,   ETC.  [ChAP.    4. 

issue  subpoenas  same  term  of  the  superior  court  of  law  at  which  such  appeal 
for  witnesses.—  g^^\\  ^e  for  trial. 

u'ef-'unac'tions      8.  When  the  defendant  in  an  action  of  debt,  covenant,  or 

of  debt,  cove-    assumpsit,  shall   appeal  from  the   judgment  of  the   court  of 

sumpit.l'ii-      pleas  and  quarter-sessions,  to  a  superior  court,  and  sliall  not, 

peaiinsforde-   ^y^^y^  the  trial  thereof,  diminish  the  sum  recovered  in  the  court 

dion'aUpi.ft.'   of  pleas   and   quarter-sessions,  the  said   superior  court,  if  it 

interest.— K.S.^^j^j^hj^t  j-^g  appeal  was  taken  for  the  purpose  of  delay, 

*■  *'  '■  '  shall  give  judgment  for  the  plaintiff,  not  only  for  the  amount 

recovered  "in    said  court,  but   also   for  the    sum    in    addition 

thereto  of  four  per  centum  per  annum  on  the   principal  sum 

recovered,  from  the  time  of  judgment  in  the  inferior  court  to 

the  time   of  entering  the   same   in  the  superior  court,   which 

additional  sum  shall  draw  no  interest. 

Plaintiff ap-  9    When  the  plaintiff  shall  appeal  from  the  court  of  pleas 

?eeovIing'^°°'  and    quarter-scssions    to    the    superior   court,    and    shall    not 

more  to  have    recover  a  greater  sum  than  was  recovered  in  the  court  of  pleas 

mxy' beordered  and  quarter-sessions,  besides  the  interest  accrued    since  the 

topay  costs.— fQ].^jejjuf|gnient,  he  shall  not  recover  the  costs  of  the  appeal, 

E.  S.  c.  4,  s.  9.   ^^^  ^j^^j^  ^^  ^.^y^^  ^^  ^j^^  discretion  of  the  superior  court,  to 

pay  the  same. 
Bonds  for  ap-        10.    Bonds  taken  for  the  prosecution  of  appeals  shall  make 
peal  and  prose- g^  p^^j.^  ^f  ^\^q  record  sent  up  to  the  superior  court,  on  wliich 
be'sent'up  as    judgment  may  be  entered  against  the  appellant  and  his  sure- 
part  of  the^rec-  ^-gg^  jj-j  ^^  ^ases  whcre  judgment  shall  be  rendered  agamst  the 
entered upoi'  appellant;  also  in  cases  of  appeal   and  certiorari  from   the 
them.— R.S.  c.  ^.Q^-j^y  ^^  ^^e  superior  court,  the  bond  given  for  the  prosecu- 
4,  s.  10, 15.       ^.^^^  ^^  ^j^^  ^^^.^  ^j^^jj  ^^^|.^  ^  p^j.j.  ^^  ^jjg  record,  and  be  trans- 
mitted therewith. 
Appeal  not  dis-      11.    No  appeal  shall  be  dismissed  for  want  of  form,  if  the 
rais,=ed  for  want  gom-j;  gijall  be  of  Opinion  that  there  appears  to  be  sufficient 
c"r™il^'  ^'  matter  of  substance  in  the  transcript  of  the  record  and  pro- 
ceeding to  enable  the  court  to  proceed  thereon. 
Clerk  of  sup'r       12.  "The  clcrk  of  the  superior  court,  upon  receiving  a  tran- 
ceipt^fol^ran's.  script  of  the  record  and  proceedings  in  any  suit,  brought  iip  by 
and  indorse       appeal,  shall,  if  required,  give  a  receipt  for  the  same,  and  im- 
ET"4,'r?2:  mediately  indorse  thereon  the  day  when  it  is  delivered. 
Shall  issu'e  sub-      13.    The  clerk  of  the  superior  court,  upon  the  filing  of  the 
qred.-K."s.  transcript  in  appeal,  shaU,  if  required,  issue  subpcenas  for  wit- 
c.  4,  s.  13.         nesses,  to  attend  at  the  term  when  the  cause  shall  stand  for 

trial. 
Penalty  of  sioo  14.  If  the  clcrk,  either  of  the  superior  or  county  court,  shall 
"ngfdutyt  fail  to  perform  any  of  the  duties  prescribed  to  him,  in  this 
regard  to  ap-  chapter,  he  shall  pay  one  hundred  dollars  to  the  party  appcal- 
4,'s!'il-m2;  ing,  and  shall  further  be  liable  to  an  action  on  the  case  on  be- 
e!  1,  s.  2.  '  half  of  any  person  injured  by  his  neglect  of  duty. 
Clerk  of  sup'r  15.  Every  person  obtaining  a  writ  of  re  cor  dari  facias  loque- 
cur'tVof  DcT"  f(^m,  or  writ  of  false  judgment,  to  remove  proceedings  had  be- 
son..  suing  forc  a  justice  or  justices  of  the  peace  to  a  superior  court,  shall 
ar''l'l''s7t  execute,  before  the  clerk  of  the  superior  court,  at  the  time  of 
riu.  "  ■  '■  '  obtaining  the  same,  a  bond  payable  to  the  adverse  party,  with 


Chap.  4.]  appeals,  etc.  75 

sufficient  security,  for  the  payment  of  the  judf^ment  and  costs 
which  may  be  recovered  against  such  person  :  On  which  bond, 
as  likewise  on  the  bonds  taken  on  obtaining  a  certiorari  or 
writ  of  error,  judgment  may,  on  motion,  be  entered  against  the 
principal  and  sureties  therein,  in  the  same  manner,  and  under 
like  circumstances  as  judgment  is  rendered  on  appeal  bonds. 

16.  Where  writs  of  certiorari  are  directed  to  the  county  Clerk  of  co.  or 
court,  the  clerk  of  said  court,  or  of  the  superior  court,  shall  t",Pe''™"5  *!' 
take  security  in  the  same  manner,  and  under  the  same  regula-  of  pireons'su. 
tions  that  security  is  taken  on  appeals  from  the  county  to  the  '"f.flV's"'" 
superior  court.  4_  s.'ie     " ' "'" 

17.  The  superior  courts  shall  have  power  to  grant  writs  of  Sup'r  courts 
error  for  correcting  the  errors  of  any  inferior  court,  and  the  "'.''>' S'''"t"'->ts 
party  praying  such  writ,  before  the   same   shall   issue,   shall  Proceedings  on 
assign  error ;  and  if  upon  argument  of  any  writ  of  error,  or  'Jj'""- 

trial  of  any  appeal,  from  any  inferior  court,  the  judgment  or  fin'u'judgment 
decree   of  the   inferior  court  shall  be  reversed,    the    superior  ""''.'*'"'' '"''?- 
court  shall  grant  judgment,  or  make  such  decree  thereupon,  as  c.'Ts'.Tt'''  "' 
should  have  been  made  or  entered  in  such  inferior  court,  and 
may  issue  execution  thereupon  without  granting  a  writ  oi pro- 
cedendo :  And,  to  prevent  the  obtaining  of  writs  of  error  by 
surprise,  the  party  praying  such  writ  in  a  civil  cause  shall  give 
notice  in  writing  to  the  adverse  party,  at  least  ten  days  before 
motion,  of  his  intention  to  move  for  such  writ,  and  no  such 
writ  shall  be  granted  without  affidavit  of  such  notice. 

18.  No  writ  of  error  shall  be  allowed,  or  prosecuted  for  any  Timeforbrin- 
matter-of-fact  or  error  in  law,  upon  any  judgment  rendered  in  '"§  ^^'"ts  of  e?- 
any  of  the  courts,  but  within  five  years  next  after  the  entering  Tir^o  ^" "' *' 
such  judgment,  and  not  after.  o   •     .     • 

19.  If  any  person,  entitled  to  prosecute  a  writ  of  error,  be.  Proviso  for  per 
at  the  time  of  his  right  to  bring  such  writ,  within  the  age  of  ^'"?*.  V'^sr  dis- 
twenty-one  years,  noti  compos  mentis,  imprisoned,  or  out  of  the  s^c!'4Ts7"i9: 
State,  then  such  person  may  bring  a  writ  of  error  provided  he 

bring  the  same  within  two  years  after  being  of  sound  memory, 
at  large,  returned  into  the  State,  or  of  age,  as  other  persons 
having  no  such  impediment  might  have  done. 

20.  Every  person  who  may  bring  a  writ  of  error  shaU  exe-  securitv  to  be 
cute  bond,  with  good  security,  payable  to  the  adverse  party,  g"'en.-R.   s. 
to  abide  by,  perform,  and  fulfil  the  judgment  which  shall  be  "'  *' "'  "' 
given  therein. 

21.  No   cause   shall  be  transmitted  to  the   supreme   court  Appeals  aliow- 
irora  the  superior  court  of  law,  but  on  an  appeal  of  one  of  the  ^'^  *™™ »"?''' 
parties  from  tiie  sentence,  judgment,  or  decree  of  said  supe-  ^uT'oT'iv- 
rior  court,  unless  the   same   be   expressly  authorized  by  law '"§  ■'e<='"-'V-— 
And   such  appeal  may  be   had  in  any  cause,  either  civil  or  sumnmrv- '■''''■ 
criminal,  on  giving  bond  and  adequate  security  to  abide  the  J^'^s'"''"'- 
sentence,  judgment,  or  decree  of  the  supreme  court;  which 

bond  may  be  proceeded  on  to  judgment  by  the  supreme  court, 
in  the  same  manner  as  bonds  in  the  case  of  appeals  from  the 
county  to  the  superior  court:  Provided,  however,  that  free  per-  Proviso  for  in 
sons  convicted  of  capital  felonies  and  sentenced  to  die,  who '?'!""' ='^" 


76  APPEALS,    ETC.  [ChAP.    4. 

are  vinable  to  give  such  security,  may  appeal  without  it,  if  the 
court,  before  whom  the  cause  is  tried,  shall  allow  it. 
Supreme couvt,      22.    Appeals  shall  be  allowed  from  any  final  judgment,  sen- 
on  appeal,  to     ^g^^e,  or  decree  of  the  superior  court  of  law,  court  of  equity, 

render  ludgmt  '  ^  i    ,  •  j    •  f  i    „ 

uponmspcc-     or  court  of  Oyer  and  termmer;  and  m  every  case  ot  sucli  ap- 
tion  of  the        neal.  the  supreme  court  shall  render  such  sentence,  judgment, 

whole  record,      r'  I  .  ,  i-i.iii 

R.  S.  c.  4,s.22.  or  decree  as,  on  uispection  of  the  whole  record,  it  shall  appear 

to  them  ought  in  law  to  be  rendered  thereon,  and  may  cause 

the  same  to  be  enforced  and  executed  by  any  proper  process. 

Appeals  allow-      23.    The  superior  court  may,  whenever  it  shall  be  deemed 

ed  at  discretion  proper,  allow  an  appeal  to  the  supreme  court  from  any  intcr- 

01  the  court        ri',  ri  i  .  .' 

from  interiocu-  locutory  judgment,  sentence,  or  decree  at  law  or  m  equity,  at 
i^windfn  e'"'  the  instance   of   the  party   dissatisfied  therewith,  upon   such 
R.*^S*c.  v.'^i'i.  terms  as  shall  appear  to  the  court  just  and  equitable;  and  the 
judge   allowing  the  same,  shall  direct  so  much  only  of  the 
record  and  proceedings  in  the  cause  to  be  certified  to  the  su- 
preme court,  as  may  be  judged  necessary  to  present  the  ques- 
tion or  matter  arising  upon  such  appeal  fully  to  be  considered 
by  the  said  court. 
Insnchcase  24.    The  allowance  and   prosecution  of  such  appeal   shall 

^'"^r'nouobe  "°*  ^^  deemed  in  law  to  remove  the  record  of  the  cause;  and 
reraOTed;  may  the  court  whence  the  appeal  is  taken,  notwithstanding  the  ap- 
T^iStdue  —   P*^^l'  '^^y  make  all  necessary  orders  for  preparing  the  cause 
R'.V.'c.'irs-S^.  for  trial  as  fully  as  if  the  said  appeal  had  not  been  taken. 
On  appeal  to         25.    In  every  case  of  appeal  to  the  supreme  court,  it  shall 
Tk '"Mcierk  ^^  ^'^"^  '^'^''-y  °^  *'^*^  ^^^^^^  °^  ^'^*^  superior  court  of  law,  and  clerk 
and  master  to    and  master  in  equity,  to  file  with  the  clerk  of  tlie  supreme 
file  transcript.   pQurt,  ou  or  before  the  seventh  day  of  the  term  next  ensuing 
Zi.    '*''  '      the  appeal,  a  transcript  of  the  record  and  proceedings  of  the 
causes  in  their  respective  courts  in  which  appeals  have  been 
taken ;  for  which  service  an  additional  fee  of  two  dollars  shall 
be  allowed  to  the  clerk,  and  clerk  and  master. 
On  failure  of         26.    The  appellant  himself  may  likewise  file  the  transcript 
<^l<^|-k.j|ppeij|'j^t  and  bond  of  his  appeal  with  the  clerk  of  the  supreme  court; 
faiiurl^ppeiL  but  if  this  be  not  filed  at  all  within  the  time  herein  directed, 
'"T^euiV"   ^^'^  appellee  may  file  tliem  during  that  or  the  next  term  of  the 
may''obta'in  cer- court,  or  may,  at  any  time,  by  permission  of  the  court,  obtain 
nime'^and  re''  ^^  certificate  from  the  clerk  of  the  supreme  court,  under  the 
eovel-^doubir    seal  of  the  court,  of  such  failure,  which  certificate  he  shall  file 
n'V^e^' "'  ^"  ^''"^  clerk's  ofiice  of  the  court  from  which  the  appeal  was 
'*'    '    '       taken,  and  thereupon  the  said  last-mentioned  clerk  shall  record 
the  said  certificate  and  issue  execution,  or  any  other  process 
on  tiic  judgment  rendered  in   the  superior  court,  as  though  no 
appeal  had  been  prayed,  taxing  double  costs  against  the  ap- 
pellant. 
Anv  defendant,      27.    Appeals  shall  also  be  allowed  at  law,  under  the  rcgula- 
morrtlwn  oie,  fions  in  tiiis  chajjter  prescribed,  to  any  number  of  the  defend- 
may  appeal.— '  ants,  where  there  shall   be   more  than  one;  and  such  appeal 
1850,  c.  3.         g,^,^j|  ,^^^^  vacate  the  judgment  against  tiiosc  not  joining  in  the 
appeal,  but  execution  may  issue  thereon,  and  any  discliarge, 
release,  payment,  or  satisfaction  of  or  towards  said  judgment. 


Chap.  5.]  apprentices. 

shall  be  available  to  the  defendants  who  may  appeal,  and  the 
same  may  be  pleaded  at  any  time  before  final  judgment,  on 
paying  into  court  the  costs  accrued  to  the  time  of  plea  pleaded. 
And  the  provisions  of  this  section  shall  extend  to  appeals  from 
justices  of  the  peace,  as  well  as  to  those  from  every  court  of 
record. 


77 


^^?';u'    '^™   allowed:  judgment  in  party's  fmw,  10  Ire.  237,  12  lb    327'  manda- 
mus,  2  lb.  430;  cart-way,  1  Dev.  368;  a^mntment  of  guardian,  i  lb.  2H    laa^aHonof 

ord  13  Ib.'212;  2  Dev.  ^  3  HawktrsTf  S'^  -^^^^^^^^  ^(.^^'r/zS" 

■4  1b.  271;  mistaken  verd It,  lire.  172-  for  costs  omMtmn-,  9  Th  To.  /JT  »  /  <r  ""'..''!""' 
r'ffs,"?  iM  rii    /Ti    1  M,„.    „r.n         ,"'■',,■  ,J,"''''^<  ^  ^"-  '^t  f°  state,  in  criimnal 

cases  tn  Co-  Co.,  1  Mm.  257:  order  to  deliver  tip  deed  produced  under  subnmia  1  Dev  74- 
S  1  ?,  e"  A  ,  *;  t"  V  ''''"'fy  "™-  '"¥'  1  O.  &  B.  1 14 ;  fe™%  ro£l  ZpartJ  own 
to«d  ll,e   63.  when jud.,,menl  discretional,  8  lb.  4S0,  4  D.  &  B.  429   1  Ire   106-  m-m« 

n  qffi  n  Th  1  i  n  ^'  i?'^  „?'''n'"'  "-^  '"""'rf'nenf,  2  Jones,  63,  6  Ire.  425,  10  lb.  390  7 
r„,    r  '  P   i^;    '      °\'^  '^:  "^'.  ^^-  235-  1  J^ev.  313.     The  bond:  form  of,  7  Ire  215  2 

The  uretles'  3  Ire  ^3  11  Ih'  i^q'^  m"*'  ".*^="  ^''''-  "^^  ""'i"""™  charges,  1  Ha^ks,  366. 
Jftc  s(»e£ies  3  ire.  13,  11  lb.  139  1  Mur.  408;  on  appeal  from  issue  on  cL  sa.  5  Ire  649 
3  lb.  66.     Ooiections  to  anneal  waived  12  \b   181    d  Ih    >;q       p^^i     .  ;. '^"- '"■  "/'^- o*") 

i^-  ri3l^'  l?an-/b"2  'i^o  /b"Ti^  I  ">- .3  V"-^  "--'^.  B^^    'rn 

Sect.  8.    2  Mur.  25  '  Recordari,  6  Ire.  221,  7  lb.  130,  Bus.  298. 

Sect.  9.   1  Jones,  91. 

Sect.  17.    12  Ire.  118,  8  lb.  247;  4  D.  &  B.  487,  2  Dev  314   1  Ih   3Ti 
oA^^'^n  ^^  '•"'*  ^2-    ^"'^  "°t«  ">  5  1-     Bond,  2  Hawks,  400      >V«°'o/™«.r,?  4  D    C-  R 

"^^^1^.^^i^t^frib:t^;^^V^3^J^----^^^--'  ^  • 

Sect.  25.    1  D.  &  B.  349. 

Sect.  26.   4  L-e.  215;  1  Hawks,  231;  Id.  37. 


CHAPTER    5. 


APPRENTICES. 


Section 

1.  Orphans  .and  certain  other  children 

of  small  estate,  to  be  bound  out  by 
county  court.  Certain  children  of 
free  negroes  to  be  bound  out. 

2.  To  whom,  and  for  what  time,  chil- 

dren to  be  bound. 

3.  Duties  of  masters.    'VVho  to  be  edu- 

cated. 

4.  Binding  to  be  by  indenture.    Kem- 

edj'  for  apprentice  thereon. 
6.  Master  of  children  of  color  to  give 
bond  not  to  remove  them  out  of  the 
co\uity :  and  to  produce  them  when 
required.      On  failure    to   produce 


Sectiox 

tliem  to  be  sued  and  the  whole  pen- 
alty recovered.  When  colored  mar- 
iner apprentice  may  be  carried  from 
the  county.  AVhat  shall  excuse  non- 
production  of  appreutice.  Master- 
ship may  be  surrendered  on  terms. 
In  certain  cases  may  be  taken  to 
adjoining  county  and  bound. 

6.  Eemedy  for  master    where    .appren- 

tice absents  himself  after  the  age  of 
eighteen  years. 

7.  Penalty  for   harboring   orphans  and 

not  having  them  bound  out. 


1.    It  shall  be  the  duty  of  the  several  courts  of  pleas  and  Orphans  and 

estaterr  o?"  '°  ''.T'  °,"''  "1  ^PP-«t--'  all  orpha'ns  whose  ^^^^^^ 
estate,  aie  of  so  small  value  that  no  person  will  educate  and  Bmali  el.'l  ,o 

7* 


78  APPRENTICES.  [ClIAP.    5. 

be  bound  out    maintain  them  for  the  profits  thereof ;  also  all  children  under 
^urte."'^        age  whose  lathers  have  deserted  their  families,  and  have  been 
absent  for  the  term  of  one  year,  leaving  them  without  suffi- 
cient support,  or  where  application  may  be  made  to  the  war- 
dens of  the  poor  for  relief,  and  the  said  wardens  shall  certify 
the  same  to  the  court  of  pleas  and  quarter-sessions ;  also  all 
children  under  age,  whose  mothers  shall  have  secured  to  them 
such  property  as  they  may  thereafter  acquire,  provided  in  this 
case  that  the  children  be  not  remaining  with  the  father,  and 
the  court,  in  its  discretion,  thinks  it  improper  to  permit  such 
Certain  chii-     children  to  remain  with  the  mother ;  also  the  children  of  free 
CToes  to^^ife' ""'  negroes,  where  the  parents  with  whom  such  children  may  live, 
bound  out—    do^not  habitually   employ  their  time  in  some  honest,  indus- 
E.  S.  c.  6,8. 1,  ^^..^^^  occupation  ;  and  all  free  base  born  children  of  color. 
To  whom  and        g    Every  male  apprentice  shall  be  bound  to  some  trades- 
chiidr™  to'be    man,    merchant,    mariner,    or  other    person    approved  by   the 
bound. -R.  S.  court,  until  the  age  of  twenty-one  years,  and  every  female  to 
"■  ^'  '•  ^'  ^-       some  suitable   employment  till  her  age  of  eighteen  years,  if 

white,  but  if  colored,  till  twenty-one. 
Duties  of  mas-      3.    The  master  or  mistress  shall  provide  for  the  apprentice, 
**"■  diet,  clothes,  lodging,  and  accommodations  fit  and  necessary; 

and  such  as  are  white,  shall  teach,  or  cause  to  be  taught  to  read 
and  -VATite,  and  the  elementary  rules  of  arithmetic ;  and  at  the 
Who  to  be  edu- expiration   of  every  apprenticeship,  shall  pay  to  each  appren- 
rf'3"6^'^''''tice,  six  dollars,  and  furnish  him  with   a  new  suit  of  clothes 
'  '   '  and  a  new  Bible  :  and  if  upon  complaint  made  to  the  court  of 

pleas  and  quarter-sessions,  it  shall  appear  that  any  apprentice 
is  ill  used  or  not  taught  the  trade,  profession,  and  employment 
to  which  he  was  bound,   or  that  any  Avhite  apprentice  is  not 
tauo-ht  reading,  writing,  and  arithmetic,  as  aforesaid,  the  court 
may  remove  and  bind  him  to  some  other  suitable  person. 
Bindingtobe        4.    The  binding  of  apprentices  shall  be  by  indenture,  made 
by  indenture,    j^  ^j^^  ^^^^^  ^f  ^^^  chairman  of  the  county  court  of  the  one 
part,  and  of  the  master  or  mistress  of  the  other  part ;  which 
indenture  shall  be  acknowledged  or  proved  before  such  court 
and  recorded,  and  a  counterpart  thereof  shall  remain  and  be 
Remedy  for  ap-  kept  in  the  clerk's  office  for  the  benefit  of  the  apprentice  ;  and 
Vn-R  's^^T  fniy  person  injured  may  at  his  cost  prosecute  a  suit  tiiereon  in 
8"s.  4.  '     '  "'  the  name  of  the  chairman,  and   his  successors,  and  recover  all 
damages  which  he  may  have  sustained  by  reason  of  the  breach 
of  the  covenants  therein  contained. 
Master  of  child      5_    When  the  court  of  pleas  and  quarter-sessions  shall  bind 
bnnd'no[°to'r^-  any  child  of  color,  they  shall  take  bond  with  sufficient  security 
move  iiiTn  out  j,^  ^hc  suui  of  ouc  thousand  dollars,   payable  to  the  State  of 
AndToprX'o  North   Carolina,  from  the  master  or  mistress,  not  to  remove 
iiim  when  re-  ^y^^.\^  colored  ciiild  out  of  the  county  where  he  is  bound,  and 
o","iu1iure  to    to  producc  him  before  such  court,  at  any  time  when  the  court 
produce,  to  be  ^^y  require  it;  and  also  to  produce  him  at  the  expiration  of 
'wiwic'pcnaity   the  term  of  his  service;  and  on  failure  in  either  case  to  pro- 
recovered,        duce  him.  after  two  several  warnings,  the  county  solicitor  is 
mirinerapven-  hereby  directed  to  bring  suit  against  such  person  on  his  bond, 


Chap.  5.]  apprentices.  79 

for  the  use  of  the  apprentice,  in  which  the  whole  sum  shall  be  ticc.maybe 
recovered,  as  liquidated  damages:  Provided,  nevertheless,  that  ?''''''''' ''™" 
any  person  bound  to  a  seafaring  employment,  may  be  carried  \vi,at°Scs- 
out  of  the  county  in  the  ordinary  pursuit  of  his  business ;  and  ''"■''.  "on-P'-o- 
provided  further,  that  no  master  or  mistress  shall  be  subject  to  prenUce.""^  "'" 
a  recovery  on  said  bond,  who  shall  make  it  appear  on  the  trial,  M^'^'ership 
that  he  or  she  was  unable  to  produce  the  apprentice,  by  the  S^'on  tomt 
act  of  God,  or  by  the  act  of  the  apprentice,  without  any  de- ^"'^'"■'"'"<=«««s 
fault  on   the  part  of  the   said  master  or  mistress:    Provided  ZfoUVglZl; 
always,  however,  that  the  court  may,  in  its  discretion,  accept  ^""^ ^^"''■T'''- 
the  surrender  of  the  mastership  of  an  apprentice  at  any  time,  isso,  cl  m" 
and  on  such  terms  as  it  shall  deem  just;  all  which  shall  be 
recorded  ;  and  provided,  moreover,  that  if  the  master  or  mis- 
tress shall  remove  to  an  adjoining  county,  the  court  may,  in 
its   discretion,    permit   the    apprentice    to    be   carried   to   that 
county,  to  the  intent  that  he  may  there  be  bound  to  the  per- 
son so  removing,  but  to  none  other  ;  and  when,  but  not  before, 
the  said  master  or  mistress  shall  exhibit  to  the  com-t  which  first 
bound  the  apprentice,  a  duly  certified  copy  of  the  second  bind- 
ing, together  with  the  indenture  and  bond,  and  the  court  shall 
be  satisfied  therewith,  then  the  said  master  or  mistress  shall  be 
deemed  and  held  to  be  discharged  thereafter  from  the  condi- 
tion  of  the   bond  first  executed ;  all  which   matters  shall  be 
recorded,  and  the  certified   copy  aforesaid,  shall  be  filed  with 
the  indenture  in  that  court. 

6.  If  any   apprentice,   whether  colored    or  otherwise,  who  Remedy  for 
shall  be  well  used  by  his  master,  and  who,  if  a  white  person  "'"'""■  '^''™ 
shall  have  received  from  his  said  master  not  less  than  twelve  serhimseif' 
months  schooling,  shall  absent   himself  after  arrivino-  at  the  "*''^'' "'"  ^'S^  o*" 
age  of  eighteen  years  from  his  master's  service,  before  the  term  -tsfc.v.'s: 
of  his  apprenticeship  shall  have  expired,  every  such  apprentice 

shall  be  compelled  to  make  satisfaction  to  the  master  for  the 
loss  of  his  service  :  and  in  case  any  apprentice  shall  refuse  to 
make  such  satisfaction,  his  master  may  recover  by  warrant 
before  any  justice  of  the  peace,  such  satisfaction  not  exceed- 
ing sixty  dollars,  as  the  justice  may  determine  ought  to  be 
made  by  such  apprentice  ;  or  the  master  may  have  his  action 
on  the  case  against  the  apprentice  for  his  default :  Provided, 
that  no  apprentice  shall  be  compelled  to  make  any  satisfaction 
but  withm  seven  years  next  after  the  end  of  the  term  for  which 
he  shall  be  bound  to  serve. 

7.  No  housekeeper  shall  harbor  and  conceal,  or  hire  any  Penal hn.ri, ,■,,•- 
orphan  chdd,  without  first  obtaining  leave  of  some  justice  of  ^"t'"^"',^^"' 
the  peace,  under  the  penalty  of  ten  dollars,  one  half  to  the  them  bo„M  ^^ 
mformer,  and  the  other  half  to  the  poor  of  the  county;  and  ™^-^-^-<=''- 
such  justice,  on  granting  permission,  shall  bind  the  person  by  "  ' 
recognizance  to  bring  the  said  orphan  child  to  the  next  county 

court,  which  shall  bind  such  orphan  agreeable  to  law 


Sect.  1.   Bus.  414;  6  Ire.  450 
Sect.  4.   Mistakt  in  one   Rn^ 
2  U.  As  13.  108.     Irreyidar  mdcnUre,  4  Dov.  61.     I)ama,j,,for  sedudng,  5  Ire.  21C. 


SECT.  4.   jl/(s(oi-e  !»  Of/e,  Bu<.  21      Dfnih  nf  mmi^,-  ■>  n    c   Tj    iTi-       r^  ,,    ,      i 


80 


ASYLUMS. 


[Chap.  6. 


CHAPTER    G. 


ASYLUMS. 


I.  —  FOR    DEAF    MUTES   AND    BLIND    PERSONS. 


Section 

1.  Incorporated.    How  styled. 

2.  To  be  governed  by  board  of  seven 

directors,  and  have  a  president. 

8.  Who  sliall  compose  board.  Governor 
to  fill  vacancies. 

4.  Corporate  powers  vested  in  a  presi- 
dent and  directors.  Their  powers 
and  duties. 

6.  Time  of  meeting.  Hay  resign.  Ke- 
raov.ll  from  Wake. 

6.  Board  to  report  to  General  Assembly. 

7.  To    report    to    literary    board  what 

counties  bound  to  provide  for  pupils. 
Public  treasurer  to  report  to  literary 
board  what  counties  have  levied  tax, 
etc. 


1.  An  asylum  for  the  insane  established. 

Its  corporate  name,  etc. 

2.  To  be  under  the  control   of  nine  di- 

rectors chosen  by  the  General  As- 
sembly.    Their  powers. 

3.  For  what  period  chosen. 

4.  How  apportioned  through  the  State. 

5.  Three  shall  reside  in  Walce  county. 

6.  The  whole  to  meet  annually  in  No- 

vember. 

7.  Board  to    appoint  a  superintendent, 

etc.    His  qualification  and  residence. 

8.  Term  of  ofBce  eiglit  years.    How  re- 

moved. 

9.  Board  to  appoint  other  officers. 

10.  And  fi.^  salaries. 

11.  Superintendent    to    control   subordi- 

nates. 

12.  Board  shall  make  by-laws,  reports,  etc. 

13.  Wake  directors   to   be  an  executive 

committee.    Tlieir  powers. 

14.  Board  to  advertise  when   asylum  is 

completed,  and  sheriffs  to  report 
number  of  insane  in  jail,  etc.  Rule 
for  selecting  patients;  curableness 
and  not  poverty. 

15.  What  insane  removed   from  jail   to 

asylum. 

16.  Confined  on  criminal  charge   to   be 

removed. 

17.  What  indigent  iusane  admitted,  and 


Section 

8.  What  persons  received  as  pupils. 

9.  County  tax  levied  when  parents  can- 
not pay. 

10.  Other  persons  admitted  as  pupils, 
when. 

11.  Pupils  from  other  States. 

12.  Penalty  for  failure  to  levy  tax,  or  to 
collect  and  pay.  No  county  to  pro- 
vide for  more  than  five. 

13.  On  failure  to  levj-,  amount  deducted 
from  school  fund. 

14.  Eight  thousand  dollars  yearly  appro- 
priated to  institution,  out  of  literary 
fund. 

15.  Faculty  may  confer  degrees. 

16.  Funds  deposited  with  public  treasurer. 
FOR  THE  INSANE. 

proceedings  therefor.  Affidavit  of 
insanity.  Precept  to  bring  up  pa- 
tient for  examination.  Proceedings 
of  justices  on  return.  Patient  re- 
moved unless  bond  is  given,  etc. 
Examination  sent  with  him.  Form 
of  warrant. 

18.  Literrogatories,  and  answers  thereto 
transmitted  to  superintendent. 

19.  Board  convened  and  proceedings  when 
indigent  insane  sent  to  asylum. 

20.  When  paying  patients  from  other 
States  admitted.  What  necessary 
to  entitle  such  patient  to  admission. 
Foi-m  and  conditions  of  tlie  bond  re- 
quired. 

21.  Money  not  spent,  refunded. 

22.  Bonds  given  to  keep  insane  from  asy- 
lum transmitted  to  office  of  county 
court,  etc.     Damages. 

23.  Form  and  condition  of  bond. 

24.  On  breach  of  bond,  patient  sent  to 
asylum  by  order  of  county  court. 

25.  Two  guardsmen  only  to  bo  employed 
unless,  etc. 

20.  Wliat  insane  deemed  indigent.  Coun- 
ty to  pay  their  expenses  into  public 
treasury. 

27.  IIow  county  may  bo  reimbursed. 

28.  County  tax  levied  for  support,  otc, 
of  insane. 


Chap.  6.] 


ASYLUMS. 


81 


Skction 

29.  Failure  to  levy,  or  to  collect  and  pay 

tax,  a  misdemeanor.    Proviso. 

30.  Amount  in   certain    cases    deducted 

from  school  fund. 

31.  Guardian  or  friend  giving  bond    un- 

der twenty-third  section,  or  advanc- 
ing money,  may  be  repaid. 

32.  Jloney  to  support  asylum  paid   out 

of  public  treasury. 

33.  Money  belonging  to  asylum  paid  iuto 


Section 

public    treasury.      Donations,    how- 
applied. 

34.  On  what  warrant    treasurer  of  asy- 

lum to  pay.     To  give  bond. 

35.  Board   and  executive    committee    to 

record  their  proceedings,  etc. 

36.  Tax  laid  for  support  of  asylum,  to  be 

paid  into  the  public  treasury. 

37.  Who  shall  be  official  visitors. 


I.  —  FOR   DEAF   MUTES    AND   BLIND    PERSONS. 

Whereas,  in  virtue  of  an  act  of  the  General  Assembly  of  the  Preamble. 
year  18-16,  entitled  "  An  Act  to  provide  suitable  buildirii^s  for  Jg^e'  l'  %■ 
the  comfortable  accommodation  of  Deaf  Mutes  and  Blind  Per-  is^,'  e!  4,  k 
sons  in  lhis_  State,"  and  of  several  supplemental  acts  passed  "5^' c' Is^' 
since  that  time,  many  suitable  buildings  have  been  erected  in     "'"' "^ 
the  city   of  Raleigh,   on    the   public   grounds   called   Caswell 
Square,  for  the  accommodation,  education,  and  maintenance 
of  deaf  mutes  and  blind  persons  of  the  State,  and  the  institu- 
tion  hath   been    incorporated   under   the    name   and   style   of 
"  The  North  Carolina  Institution  for  the  education  of  the  Deaf 
and  Dumb  and  of  the  Blind:  "  — 

1.  Be  it  therefore   enacted,  That  the  said  institution  shall  incorporated. 
be,  continue,  and  remain   a  corporation,  under  the  name  and 

title  of  "The  North  Carolina  Institution  for  the  Deaf,  Dumb,  How  styled. 
and  Blind,"  and  shall,  at  all  times,  be  subject  to  the  control  of 
the  General  Assembly. 

2.  The  said  institution  shall  be  governed  by  a  board  of  seven  To  be  o-overned 
directors,  a  majority  of  whom  shall  constitute  a  quorum  for  ^y  boal-d  of 
business,  and  one   of  whom   shall  be   appointed  president,  to  anlfhavel"""'' 
preside  at  their  meetings ;  and  the  principal  of  the  institution  P'-es^ident. 
shall  be,  ex  officio,  secretary  of  the  board,  who   shall  record, 

attest,  and  preserve  their  proceedings. 

3.  Such  persons  of  the  board  of  directors  appointed  by  the  Whoshaiicom 
act  of  the  General  Assembly  of  the  year  1848,  chapter  5,  enti-  P°^®  ^°^^^- 
tied  ''All  Act  to  establish  a  Board  of  Directors  for  the  Deaf 

and  Dumb  Institute  in  this  State,"  as  are  now  in  office,  and 

such   other  persons   as,  having  been   appointed  to  vacancies 

therein,  are  now  in  office,  shall  be  the  board  of  directors  of  the 

said  institution:  and,  in  case  of  a  vacancy  therein,  (whereof, 

whenever  it  may  occur,  the  secretary  shall  give  notice,)  the 

governor  shall  forthwith  fill  the  same,  and  submit  it  for  ap- Governor  to  fill 

proval  by  the  General  Assembly  at  the  earliest  opportunity.       vacancies. 

4.  The  corporate  powers  of  said  institution  shall  be  vested  Coporate 

in  the  president  and  directors,  under  the  name  and  style  in  the  E""' m^siden? 
first  section   named,  who  shall  have  capacity  to  take  and  re- ""^i ''""''ctors; 
ceive,  in  ti-ust  for  the  institution,  donations  of  real  and  personal  and  jE'"' 
estate.      They  shall  be  charged  with  tiie  erection   of  all  neces- 
sary buildings   and  fixtures,  and  with   furnishing,  preserving, 
and  repairing  the  same;  with  the  care  of  the  grounds  and 


82  ASYLUMS.  [Chap.  6. 

appurtenances,  and  of  the  interest  of  the  institution  generally. 
They  shall  have  power  to  employ  all  necessary  agents ;  appoint 
and  remove  professors ;  to  fix  their  compensation ;  prescribe 
their  duties;  establish  rules  for  the  government  and  discipline 
of  the  pupils ;  regulate  tuition  fees ;  prescribe  and  control  the 
duties  and  proceedings  of  officers,  servants,  and  others,  with 
respect  to  their  employment :  and,  in  general,  to  do  all  matters 
and  things,  (the  same  being  consistent  with  the  laws  of  the 
State,)  which  shall  seem  to  them  most  expedient  for  promoting 
the  purposes  and  objects  of  the  institution ;  and  to  this  end, 
to  make  all  necessary  by-laws,  rules,  and  orders  which  they 
may  deem  useful  and  proper. 
Time  of  meet-      5.    ^he  board  shall  meet  at  stated  times,  and  also  at  such 

ing.     May  re-        .  1  ,•  ,        •  .  mi 

sign.  Removal  otlicr  times  as  busuiess  may  requn-e.  1  he  members  may  re- 
from  Wake.      gign  ;  and  a  removal  from  the  county  of  Wake,  or  an  omission 

to  act  for  a  period  of  six  months,  shall  create  a  vacancy. 
Board  to  report      6.    The  board  shall  make  a  report  to  the  General  Assembly 

to  General  As-      ,  1        «•  -j,  •  i  •    i       1      n         .  •.  •  ^   ^,  «    .  "^ 

sembiy.  at  each  ot  its  sessions,  which  shall  exhibit  a  full  account  of  the 

receipts  and  disbursements,  from  what  source  received,  and  for 
what  purpose  expended,  the  funds  on  hand,  and  a  general 
statement  of  the  condition  of  the  institution. 

iTtVaryToarf        ''•    "^'^^  ^°^^'^.  ^^^^^^  ^^^°  ^^P°^^  to  "  The  President  and  Di- 
■what  counties  rcctors  of  the  Literary  Fund   of  North   Carolina,"  on  the  day 
vi'ikfor'pupiis" "^^^^'^   that   body    shall   assemble    to    distribute  the   common 
school  fund,  what  counties  are   bound  to  provide  for  pupils 
admitted  at  the  institution,  and  how  much  ought  to  be  pro- 
vided by  each  county ;  to  which  of  the  county  courts,  and 
when,  information  was  given  by  the  board  of  their  duty  to 
Public  treasur-  make  provision  for  pupils  :  and  at  the  same  time,  the  public 

er  to  report  to  ,  '         in  ,  .  i  1  1       /.     1        » .  \-       i 

literary  board  treasurer  shall  report  to  said  board  of  the  literary  fund  what 
w'leviedta^^  counties  shall  have  levied  a  tax,  and  how  much,  for  the  sup- 
etc.  '  port  of  their  respective  pupils  ;  and  which  of  the  sherifls  have 

paid  the  same  into  the  public  treasury. 
StJd  as°pu-      ^-    '^^'^  president  and  directors  shall,  on  application,  receive 
piis.  into  the  institution  as  pupils,  all  white  deaf  mutes  and  blind 

persons,  residents  of  the  State,  not  physically  or  mentally  im- 
becile, who  may  be  over  the  age  of  eight,  and  under  twenty 
years. 
Countytaxiev-      9.    And  as  to  SO  many  of  such  pupils,  who,  or  whose  par- 

led  when  par-         j.i  ..1  ,  .r^in  ' 

ents  cannot  ^nts,  have  not  the  means  to  pay  seventy-five  dollars  a  year 
P»y-  towards    their   board    and    education    in    the   institution,    the 

justices  of  the  court  of  pleas  and  quarter-sessions  of  the 
county  wherein  any  such  pupil  shall  be  a  resident,  shall  an- 
nually levy,  and  cause  to  be  collected,  for  and  during  the 
term  of  seven  years,  a  tax  of  seventy-five  dollars  for  each 
pupil  received  into  the  institution  ;  wliich  shall  be  collected 
by  the  sheriff  or  other  tax  collector,  and  paid  into  Ihe  public 
treasury  along  with  the  State  taxes,  for  the  use  of  the  insti- 
tution. 
Other  persons  jQ.  As  to  the  rcsidoc  of  such  pupils,  they  shall  be  admitted 
piis,  when.        upon  such  tcnus  ol  pay,  as  to  board  and  education,  (not  how- 


Chap.  6.]  asylums.  83 

ever  exceeding  thirteen  dollars  per  month,)  as  the  board  of 
directors  may  think  fit. 

11.  The  board  of  directors   may  also  admit  into  the  insti-  Pxpii'  r'-'^ni 
tution,  at  their  discretion,  and  upon  such  terms  as  to  board  °"'^''  ^'"""' 
and  education,  and  other  accommodations,  as  they  may  deem 
proper,  pupils  of  like   age  and  infirmities,  who  reside  out  of 

the  State:  Provided,  hoivever,  That  no  such  pupil  shall  ac- 
quire the  condition  of  a  resident  by  remaining  here  in  such 
pupilage. 

12.  If  the  justices  shall  fail  to  levy  said  tax  for  the  space  Penalty  for 
of  one  year,  after  being  informed  by  the  board  that  such  deaf  [^""  oVto  cof 
mute  or  blind  person  is  received  into  the  institution  ;  or  if  the  iect.indpay." 
sheriff,  when  such  tax  shall  be  laid,  shall  fail  to  collect  and 

pay  it  to  the  public  treasurer,  at  the  time  of  accounting  for 

State  taxes,  the  said  justices  and  sheriff,  each,  for  his  several 

neglect,  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall 

be  pi-osecuted  in  the  superior  court  of  the  county:  Provided,^'"'?™'^y^° 

hoivever,  That  no  county  shall  be  required  to  provide,  at  one  moJe  ttan'five. 

and  the  same  time,  for  more  than  five  pupils. 

13.  If  a'ny  county  shall  fail,  for  the  space  of  one  year  after  Onfoiiure  to 
admission   of  a   poor  pupil,  for  whose   board   and   education  dXteTtVom 
such  county  ought  to  contribute  as  aforesaid,  to  pay  to  the  retool  fund. 
public  treasurer  its   proper  tax,  the  amount  thereof   shall  be 

paid  to  the  said  treasurer  by  "  The  President  and  Directors 
of  the  Literary  Fund  of  North  Carolina,"  for  the  use  of  the 
institution  ;  and  shall  be  deducted  by  said  board  of  literature 
out  of  the  share,  next  to  be  distributed,  of  such  county,  in  the 
common  school  fund. 

14.  The    president    and   directors    of  the    literary  fund    of  S^.ooo  yearly- 
North    Carolina,  for  the  use   of  the   said  institution,   and  to  tTStS 
enable  it  to  fulfil  its  duties,  shall  annually  pay  to  the  public  ™t  of  literary 
treasurer  eight  thousand   dollars,  which  surn,  with   all  other '""''' 
moneys  appropriated  to  the  institution,   shall  be  paid  by  the 

holder  of  the  funds  in  such  sums,  and  at  such  times,  as  may 
be  ordered  by  the  board. 

15.  The  faculty  of  the  institution,  witli  the  consent  of  the  Faculty  may 
board   of  directors,   may  confer   such   degrees   and   marks   of  '"""''•■'"  ''''°'''"''- 
literary  distinction   as   may  be   judged    proper  to   encourage 

merit. 

16.  All  the  cash  funds  which  may  belong  to  the  corporation  Fuh.n  deposit- 
shall  be  deposited  with  the  public  treasurer,  who  shall  keep  an  tre-ilu'er''"'''''" 
account  with  the  cori>oration,  and  report  the  same  in  his  an- 
nual statement  of  the  finances  of  the  State. 

II. FOR    THE    INSANE. 

Whereas,  in  virtue  of  an  act  of  the   General  Assembly  of  Preamble, 
the  year  eighteen  hundred   and  forty -eight,  entitled  '' An  Act\lfi'l]i\i 
to  provide  for  the  establishment  of  a   State  Hospital  for  the  la-       ''     '     ' 
sane    of  North    Carolina,''    and    of    other    acts    supplemental 
thereto  passed  since  that  time,  a  tract  of  land  has  been   pur- 
chased, and  many  suitable   buildings  have  been  erected,  and 


84  ASYLUMS.  [Chap.  6. 

are  now  erecting  thereon  for  the  accommodation,  maintenance, 
support,  and  cure  of  the  insane  of  this  State,  and  the  institu- 
tion hath  been  incorporated  under  the  name  of  "  The  Lunatic 
Asylum  for  the  State  of  North  Carolina:  "  — 
An  fisyium  for       1.   Be  it  therefore  enacted,  That  the  said  institution  shall 
tabiished— Its  Continue  and  remain  a  corporation,  under  the  name  and  title 
corporate         of  "  The  Insane  Asylum  of  North  Carolina,"  and  the  same  is 
name,  etc.        hereby  invested  with  all  the  property  which   now  belongs  to 
it  under  any  other  corporate  name;  and  by  this  name  may 
acquire  and  hold,  for  the  purposes  of  its  establishment,  all  such 
estate  as  may  be  devised,  bequeathed,  or  conveyed  to  it. 
To  be  under  2.    For  the  government  of  said  asylum,  there  shall  be  ap- 

dh'ecTo'rs' "'""  pointed   by  the  General   Assembly  nine   persons  as  directors, 
ciiosenby  Gen-  who,  and  their  successors  in  office,  shall  direct  and  manage  the 
Their  nowersf'  affairs  of  the  institution,  and,  for  its  better  government,  make 
all  necessary  by-laws,  not  inconsistent  with  the  laws  of  the 
State ;  shall  have  power  to  receive,  hold,  manage,  and  convey, 
or  otherwise  dispose  of,  in  the  name  of  the  institution,  all  such 
property  as  may  be  hereafter  given  or  otherwise  conveyed  to  the 
asylum  :  and  they  shall  serve  without  reward,  save  their  travel- 
ling expenses  incurred  in  the  discharge  of  their  official  duties. 
For  what  pe-         3.    Of  the  board   of  directors,  when  first  appointed,  three 
no   c  osen.      ^\-^^\\  bg  chosen  for  two  years,  three  for  four  years,  and  three 
for  six  years ;  and  afterwards  they  shall  be  appointed,  at  the 
end  of  their  respective  terms,  for  six  years :  and,  in  case  of 
any  vacancy  in  a  terra,  the  unexpired  portion  thereof  shall  be 
filled  by  the  governor. 
How  appor-  4.    Of  the  directors,  five  shall  be  appointed  from  the  central 

the"slite.™"°'^  portion,  two  from  the  eastern,  and  two  from  the  western  por- 
tions  of  the   State ;  and  the  vacancies  which  may  occur  in 
each  portion  shall  be  filled  therefrom. 
Three  siiaii  re-      5.    Of  the  five  directors  from  the  central  part  of  the  State, 
county.^"'"'    three  shall  be  resident,  at  the   time  of  their  appointment,  and 
continue  to  reside  in  Wake  county,  in  or  near  the  city  of  Ra- 
leigh;  and  the  other  two,  at  the  time  of  their  appointment, 
shall  be  resident  out  of  that  county. 
The  whole  to        6.    The  board  of  directors  shall  convene  at  the  asylum  on 
S^Nov."""""^  the  first  Monday  of  November,  in  each  year,  and  investigate 
the  administration  of  its  affairs,  and  report  the  same  to  the 
ensuing  General   Assembly,   with   such   remarks   and  recom- 
mendations as  to  them  shall  seem  expedient. 
Board  to  ap-         7.    The  board  shall  appoint  a  superintendent  of  the  institu- 
mtcnd'ln"''et'c.,  tion,  and  prescribe  his  duties;  he  siiall  be  a  skilful  physician, 
his  quaiifica-     educated  to  liis  profession;  of  good  moral  character,  of  prompt 
dcncc!"" '^*'''    business  habits,  and  of  kindly  disposition;  he  shall  be  a  mar- 
ried man,  and  shall  reside  constantly  near  the  institution. 
Term  of  office        8.    lie  sliall  hold  his  place  for  eight  years,  unless  sooner  re- 
removed.'"^^     moved  by  the  board,  who  may,  for  infidelity  to  his  trust,  gross 
immorality,   or   incompetency  to   discharge  the  duties  of  his 
office,  fully  proved  and  declared,  and  tiie  proof  thereof  recorded 
in  the  book  of  their  proceedings,  remove  him,  anil  put  another 
in  his  stead. 


Chap.  6.]  asylums.  gg 

9.    The  board,  at  their  annual  meeting,  shall  appoint  a  treas-  Board  to  ap- 
iirer,  steward,  matron,  and  other  otlicers  whose  appointment  P"'"'""'*^''"''^- 
is  not  elsewhere  vested,  who  shall  hold  their  places   for  one  "''''' 
year,   unless   sooner  removed  by  the   board  for  good  cause  • 
which  cause  shall  be  specified  and  recorded  in  their  proceed- 
ings, and  other  officers  shall  be  appointed  for  the  unexpired 
term  of  those  removed. 

_  10.    The  board,  at  their  annual  meeting,  shall  fix  the  sala-  And  fix  sala- 
ries and  compensation  of  the  superintendent  and  the  officers  "«^- 
and  assistants,  whose  services  may  be  necessary  for  the  man- 
agement of  the  asylum. 

11.  The  superintendent  shall  exercise  exclusive  direction  S\aperi„tend'nt 
and  control  over  all  the  subordinate  oflicers,  assistants  and  *T"*™' '"''- 
servants  engaged  in  the  service  and  labors  of  the  asylum  •  and        "''"'" 

m  every  case  of  malconduct,  may  discharge  such  servants  as 
are  employed  by  himself,  and  shall  report  to  the  executive 
committee  the  misconduct  of  all  other  subordinates. 

12.  The  board  shall  make  such  by-laws  and  regulations  for  Board  shall 
the  government  of  the  institution  as  shall  be  necessary  and  "'''"'  h'-^^^^, 
cause  them  to  be  published  with  their  biennial  report,  the  ^g.  "''""■''• ''"• 
port  of  the  superintendent,  and  that  of  the  treasurer;  all  which 

shall  be  distributed,  three  at  least  to  each  county  in  the  State 
and  sent  to  the  clerk  of  the  county  court. 

13     The  three  directors  resident  in  Wake  county  shall  con-  Wake  directors 
stitute   an   executive   committee,  with   power  to  transact  all  *° '"' ''''''*'"*'^^ 
ordinary  business,  and  all  business  which  may  not  concern  the  Ti"™ powers, 
appointment  or  removal  of  a  salaried  officer  of  the  institution 
or  the  appropriation  of  its  funds,  or  disposal  of  its  property ' 
they  shall  hold  monthly  meetings  at  the  asylum,  and  dilic^ently 
examine  mto  its  government  and  condition,  once  every  month 
or  oftener  if  necessary. 

14.    As  soon  as  the  asylum  shall  be  completed  and  ready  Board  to  adrer- 
for  the  reception  of  patients,  the  board  of  directors  shall  make  itmilc^S 
known  the  fact  by  publication  in  two  newspapers  of  the  State-  edand°S 
whereupon  It  shall  be  the  duty  of  the  sheritT  of  each  county  f^e^KsareT,; 
in  the   State  to  report  to  the  board  of  directors  the  number  of  j"",  etc 
insane  persons  in  his  jail,  confined  for  insanity,  to<^ether  with 
a  statement  of  the  peculiarities  of  each  case,  its  duration   and 
other  interesting  facts  connected  therewith,  attested  by  at  least 
one  respectable  physician ;  and  thereupon  the  board  shall  de- 
termine upon  the  admission  of  as  many  such  patients  as,  in 
their  opinion,  the  asylum  may  be  capable  of  accommodating., 
and   shall   forthwith    notify  the  several   sheriffs  thereof:  P/o- mue  for  select- 
vided,  however,  That  in  the  admission  of  such  patients   (if  all  ins  patient!,, 
cannot  be  accommodated,)  the  board  shall,  as  far  as  practica-  '^^^,,. 
ble,  apportion  the  same  according  to  the  white  ijopulation  of '>■ 
each  county ;  And  further,  That,  in  the  selection  of  all  pa- 
tients, due  regard  shall  be  had  to  the  recent  character  of  each 
case,  and  the  chance  of  curing  the  patient,  without  reference  to 
his  ability  to  pay. 


86  ASYLUMS.  [Chap.  6. 

wimt  insane  re-      \q_   Everv  insane  person   confined  in  iail  for  otlier  cause 

raoveJ  from  jail  ,,  .  i      n  i  i  j      iu  i 

to  asylum.        than  crime,  shall  be  removed  to  the  asylum. 

Confined  on  l(j.    The  courts  of  record  shall  allow  to  be  committed  to 

toTe'l^movefu  the  asylum  as  a  patient,  any  person  who  may  be  confined  in 
jail  on  a  criminal  charge,  of  any  kind  or  degree,  or  upon  a 
peace  warrant,  whenever  the  court  shall  be  satisfied  that  the 
act  was  done  while  such  person  was  insane  ;  and  the  court 
may  impanel  a  jury,  if  deemed  necessary,  to  inquire  into  the 
fact. 

What  indigent      17.    For  admission  into  the  asylum  as  a  State  patient,  (or 

tedtand^pro-'   0"^  whose  expenses   are  borne  by  the  public,)  the  following 

ceedings  there-  proceeding  shall  be  had  :  — 

*^'''  Some  respectable    citizen,   resident   in   the    county   of  the 

patient,  shall  make  before,  and  file  with,  a  justice  of  the  peace 
of  the  county,  an  affidavit  in  WTiting,  which  shall  be  substan- 
tially as  follows  :  — 

State  of  North  Carolina, 

County, 

AffidaA-it  of  in-      The  undersigned,  residing  in  said  county,  maketh  oath  that 

sanity.  ^^  j^^^  carefully  examined  ,  and  believes  him  to  be  an 

insane  person ;  that  he  is  in  needy  circumstances,  has  a  legal 

settlement  in  said  county,  and,  in  his  opinion,  is  a  fit  subject 

for  admission  into  the  insane  asylum.     Dated  this         day  of 

,  18  A.  B.  (Affiant.) 

Subscribed  and  sworn  before  me. 

C.  D.  {J.  P.) 

Whereupon,  the  said  justice  of  the  peace  shall  issue  a  pre- 
cept, directed  to  the  sheriff'  or  constable  as  follows  :  — 

The  State  of  North  Carolina. 
To  the  sheriff" or  constable  of                 county,  greeting; 
Precept  to            Whereas,  information  on  oath  has  been  laid  before  me,  that 
«ent^for  eTam-                           is  an  insane  person  :  you  are  hereby  commanded 
ination.            to  bring  him  before  me,  or  some  other  justice  of  the  peace  of 
said  county,  within  the  next  ten  days,  or  as  soon  thereafter  as 
is   convenient,  in  order  that   necessary   proceedings    may   be 
had  respecting  his  insane  condition.     Given  under  iny  hand, 
this         day  of  ,  18  ,  (J.  P.) 

Proceedings  of      Upon  the  return   of  the   precept,  with  the  body  of  the  in- 
.jus^^ices  on  re-   ^^^^^  person,  the  justice  shall  cause  to  be  associated  with  him 
two  or  more  justices  of  the  county,  who,  togetlier,  shall  pro- 
ceed to  examine  into  the  condition  of  mind  of  the  supposed 
insane  person,  and   shall  take  the  testimony  of  at  least  one 
respectable   physician,   and  such   other  persons  as  Ihey   may 
Patient  re-       think  proper.     If  the  justices,  or  any  two  of  them,  shall  de- 
bmiTis^givcn,  cide  that   such  person  is  insane,  and  some  friend  will  not 
etc.  '   become  bound,  with  good  security,  to  restrain  him  from  com- 

mitting injuries,  and  to  keep,  support,  and  take  care  of  him 
until  the  cause  for  confinement  shall  cease,  the  said  justices, 
or  two  of  them  shall  direct  the  insane  person  to  be  removed 


Chap.  6.]  asylums.  g-? 

to  the  asylum  as  a  patient;  and  to  that  end,  they  shall  direct 

a  warrant  to  the  sheriff  or  constable ;  and,  at  the  same  time 

shall  transmit  to  the  board  of  directors  the  examination  of  the  Ksamination 

witnesses,  and  a  statement  of  such  facts  as  the  said  justices '""' "'"''"'"• 

shall   deem    pertinent  to   the   subject-matter:    which   warrant 

shall  be  substantially  as  follows  : 

The  State  of  North  CaroHna. 
To  the  sheriff  or  constable  of  county,  ^reetino- : 

Whereas  it  has  been  made  to  satisfactorily ''appea?  to  us,  Form  of  war- 
J.  b.  and  O.  M.,  justices  of  the  peace  of  the  said  county,  '"''"'• 
that  A.  B.,  a  citizen  of  the  State,  is  an  insane  person  ;  that 
he  has  a  legal  settlement  in  said  county,  and  is  a  fit  subject 
for  the  insane  asylum,  and  that  his  being  at  large  is  inju- 
nous  to  himself,  and  disadvantageous,  if  not  dangerous  to 
tlie  community,  you  are  hereby  commanded  to  take  the  said 
A.  B.  and  convey  him  to  "  The  Insane  Asylum  of  North 
Carolina,''  and  there  deliver  him  to  the  superintendent  there- 
ot,  for  safe-keeping.     Given  under  our  hands,  this  day 

°^  '18  J.S.{J.P.)     ^ 

O.  M.  (J.  P.) 
18.    The  following  interrogatories,  with  their  respective  an-  Interrogatories 
swers  by  competent  witnesses,  shall  likewise  be  transmitted,  S'lXTrans- 
witli  the  other  papers,  to  the  board  of  directors  :  —  mitted  to  su- 

o         J--        1       iTTi      ,   .       ,  perintendent. 

Huestion  1.    What  is  the  name  of  the  patient  '^ 
"  2.    What  is  his  age  ? 

"  8.    Is  he  married  or  single  ? 

4.    What  is  the  supposed  cause  of  his  insanity? 
"  5.    In  what  way  is  the  disease  exhibited  ? 

"  6.    Has  any  medical  treatment  been  pursued  ?  — 

if  so,  of  what  kind  ? 
7.    Has  the  patient  manifested  any  propensity  to 
injure  himself  or  others  ? 
"  8.    How  long  has  he  been  insane  ? 

"  9.    Has  he  been  subject  to  epilepsy  ? 

10.    Have  any  of  his  ancestors  been  insane  ? 
"        11.    Has   he   any   property  ?  — how  much,  and  of 
what  kind  ? 
32.    Has  he  any  family?  — and  what  persons  com- 
pose it  ? 

19.    Whenever  any  insane  person,  in  indigent  circumstances,  Board  con- 
shall  be  conveyed  to  the  asylum,  the   superintendent,  being  Je™dl"wfeT 
duly  informed    thereof,    shall   convene   a   board    of  directors,  ind&nt  in.ane 
(any  three  of  whom  shall  constitute  a  board,)  for  the  purpose  """ '° "-'''"'"■ 
of  examming  and  deciding  if  such  person  is  a  proper  subject  I 

for  admis^sion  ;  and   if  a   majority   of  the  board   decide   that  | 

he  IS  such,  he  shall  be  received  into  the  asylum  ;  but  such 
board  may,  at  any  time  thereafter,  deliver  said  insane  person 
to  any  friend  who  will  become  bound,  with  good  security,  to 
restrain  him  from  committing  injuries,  and  to  keep,  maintain, 


88  ASYLUMS.  [Chap.  6. 

and  take  care   of  him,  in  the   same   manner  as  the  justices 

might  have  done. 
When  paying        20.    Paying   patients   from   other    States  may  be  received 
o?hCT"s'ti![er    into  the  asylum,  whenever  there  may  be  vacancies  imciaimed 
aamittcd.         by  persons  having  a  legal  settlement  within  the   State.    But 

before  any  patient  whatever  shall  be  received  into  the  asylum 

as  a  patient,  there  shall  be  produced  to  the  superintendent  — 

What  necessa-      j     rp]     treasurer's  receipt  for  three  months'  charges  in  ad- 

ry  to  entitle  '^  ° 

such  patient  to  vance. 

admission.  £.    A  sufficient  bond,  conditioned  as  hereinafter  required. 

3.    A  certificate  from  a  respectable  physician,  setting  forth  — 

(1)  That  the  patient  is  free  from  any  infectious  or  con- 

tagious disease. 

(2)  The  age  of  the  patient,  and  a  concise  history  of  the 

disease. 

(3)  Its  duration,  dating  from  the  first  symptoms. 

(4)  Its  supposed  exciting  cause. 

(5)  Whether  it  is  hereditary. 

(6)  Whether  the  patient  has  ever  been   subject  to  epi- 

lepsy. 

(7)  Whether  he  has  ever  attempted  to  commit  violence 

upon  himself  or  others. 

(8)  The  medical  treatment  pursued  in  the  case,  and  any 

circumstances  known  to  the  physician  tending  to 
illustrate  the  same. 

No  other  proceedings  shall  be  necessary  for  the  admission 
of  paying  patients. 

The  bond  required  in  this  section  shall  be  substantially  as 
follows :  — 

Form  and  con-      Know  all  men  by  these  presents,  that  we,  ,  of  the 

bmi°dXulred.  county  of  ,  in  the  State  of  North   Carolina,  are  held 

and  firmly  bound  unto  the  State   of  North  Carolina,  in  the 
penal  sum  of  dollars;  for  the  payment  whereof  we  here- 

by bind  ourselves,  jointly  and  severally.     Witness  our  hands 
and  seals,  this  the  day  of  ,  A.  d. 

The  condition  of  the  above  obligation  is  this.  Whereas  , 
of  the  county  aforesaid,  is  about  to  be  admitted  as  a  paying 
patient  into  "  The  Insane  Asylum  of  North  Carolina."  Now 
if,  while  he  shall  remain  therein,  the  undersigned  shall  con- 
stantly supply  him  with  suitable  clothing,  and  quarterly  pay 
in  advance  all  the  charges  of  said  insane  asylum  against  him ; 
and  whenever  his  removal  shall  be  required,  immediately  re- 
move him  ;  and,  if  he  shall  escape  from  the  asylum,  pay  all 
reasonable  charges  incurred  in  restoring  him  thereto  ;  and,  if 
he  shall  die  therein,  pay  all  reasonable  expenses  incurred  for 
his  funeral;  then  this  obligation  shall  be  void:  otherwise  it 
shall  remain  in  full  force. 

A.  B.  (Seal.) 
C.  D.  (Seal.) 


Chap.  6.]  asylums. 


89 


lum,    to    the    credit   of  a    patient   discharged    therefrom     the 'i'^^'"''"''"'"^'^'!- 
treasurer  shall  pay  it  to  the  person  authorized  to  receive  the 


same, 


fJ\Ml  ^i°'-    ^^^''^^^^  "nder  the  provisions  of  this  chap- Bonds  given  to 
ter    ioi  restraining  insane   persons  from  committing  injuries  keepinfane 
and  for  then-  safe-keeping,  support,  and  care,  shall  be  payable  [ran'sn^'to 
to  the   btate  of  North  Carolina,  in  the  sum  of  five  hundred  »'E'='^<"-^-o"n>y 
dollars  at  least,  and  shall  be  transmitted  to  the  clerk  of  the '""'' '^■'• 
county  court  of  the  county  wherein  the  insane  person  is  set- 
tled, for  safe-keepmg,  and  may  be   put  in  suit  by  any  person 
njured  by  the  insane  person,  by  reason  of  his  insane  condi- 
tion, lor  the  damages  sustained  thereby ;  and  shall  be  put  in 
suit  by  the  solicitor  of  the  State  for  the  county,  for  any  other 
breach  thereof,  wherein  the  damages  recovered  shall  be  for  the  D»'""ses. 
"'00°    ^,,    '"•'^"'^  P"'*°"'  ^"d  shall  be  at  least  fifty  dollars. 

23  ^  he  form  of  the  bond  mentioned  in  the  preceding  sec- 
tion shall  be  as  follows : —  r  t. 

State  of  North  Carolina,  ) 
County  of  ( 

.nJn'n''"  T^  ^^  ^''^'^  presents,  that  we,  A.  B.  principal,  Fo,™  andeon- 

and  C.  D.  and  EF.  sureties,  are  held  and  firmly  bound  unto  ^"'-"f"-'!- 

the  State  of  North  Carolina,  in  the  sum  of  dollar-  for 

the    payment   whereof  we    bind    ourselves    and    each    of '  us. 

Witness  our  hands  and  seals,  this  the  day  of 

A.  D.  -'  > 

The  condition  of  the  above  obligation  is  this  :  Whereas 
the  said  A.  B.,  with  the  view  of  hindering  G.  H.,  an  inJne 
person  resident  in  the  county  aforesaid,  from  being  sent  to 
iartJ.  T  t^^^'""  °^  ^°'*''  Carolina,"  hath  undertaken 
tain  nnn  T  TI  Committing  injuries,  and  to  keep,  main- 
Si  f'r,  """^  ^^1^^  ''^'■"  °f  '"'"•  ^'°^^'  if  th«  said  A.  B. 
then  tt^^^^'^P.^^ '"'•'/  *'^'  conditions  of  this  obligation, 
then  the    ame  shal   be  void  :  otherwise  it  shall  be  in  fulf  force 

^4    \\henever  it  shall   be   made  to   appear  to  the  county 

tTii  a^it^rr    h"n  r'  ^'".^"?  =^"  "°^  faithfully  kept^trXI 
the  insane  pei.on  shall  be  sent  to  the  asylum  by  order  of  the  ^^t'oa-'J''"-" 

wTundeSl-e  f'fTr?'  °*;"^  "^P'^"^^'''''  ^"d  ^'-'-t  f-"d  ctX^'^ott. 
tTie  Pf  f         ^'5'^  r^''^  '''^'*'^''  ^"^  ^h^"  execute    bond         ' 

sen  baol''to  r""^-,  ^"J  '"'rr^'"'  ^^^^^  P^^'^^'^^^  ^^^U  be 
sent  back  to  the  asylum,  he  shall  not  be  redelivered  on  anv 
new  bond  of  the  defaulting  obligor.  ^ 

be^LSedTl '''''"   ^"'°   P/'r^""^  (""less  a  greater  number  Two... ..- 
be  certhed  to  be  necessary  by  the  examining  justices)  shall  "-noX'o  be 

son  Z  tZ    '7  -""'■?  ^-- --°-"g  -^y  indi|e!it  insanVpe  !  ,-?'Sr''  "- 
toveUin!  e.,7  '"''  '""^'^  f,f  '"eceive,   each   one,  besides  his       ' 
travelmg  expenses,  one  dollar  per  day,  to    be  paid    by  the 
county  whence  he  is  removed.  ^         ^ 

cieM\mnl7J"'''"''    Pf.^0"'  wliose   property  shall   be  insuffi- what  i,.ane 
cieiit  amply  to  support  himself^and  his  family,  shall  be  deemed,  ;!::;;r'' '"'"- 

o 


90  ASYLUMS.  [Chap.  6. 

Avithiti  the  provisions  of  this  chapter,  to  be  indigent ;  and  the 
removal  to,  and  support  in,  the  asylum,  of  every  indigent  m- 
sanc  person,  shall  be  paid  by  the  county  wherein  he  may  be 
County  to  pay  legally  settled  ;  and  the  expense  of  his  maintenance,  and  all 
«•'<=''■  ^^iP^""""  other  needful  expenses,  shall  be  annually  paid  by  such  county 
treZry.'"       to  the  treasurer  of  the  State,  on  or  before  the  first  day  of  Octo- 
ber of  each   year,  the   said  treasurer  and  the  county  trustee 
being  duly  notified  by  the  superintendent  of  the  amount  due. 
How  county  2f.  Any  county,  liable  to   pay  the   expenses   of  an  insane 

Eed*"'"'""    person  having  any  estate,  may  cause  the  same  to  be  sold  for 
its  indemnity  or  reimbursement,  in  the  manner  provided  in  the 
chapter  entitled  "  Idiots  and  Lunatics" 
County  tax  2%    The  justices  of  the  court  of  pleas  and  quarter-sessions 

po^rf&c^'ome'  of  tlie   county,  wherein   any  indigent  insane  person  may  be 
insane.  resident,  shall  annually  levy,  and  cause  to  be  collected,  lor  and 

during  the  time  such  person  may  remain  in  the  asylum,  an 
amount  necessary  for  the  removal  to,  and  support  in  the  asy- 
lum, of  such  indigent  insane  person,  as  notified  bylhe  superni- 
tendent  as  aforesaid  ;  and  the  same  shall  be  collected  and  paid 
into  the  public  treasury,  along  with  the  State  taxes,  for  the 
use  of  the  institution. 
Failure  to  levy  29.  If  the  justices  shall  fail  to  levy  said  tax,  for  the  space  of 
er  to  collect  and  ^^^  ^fj^j.  being  notified  by  the  superintendent,  or  il  the 

Semeanm- °"'"  sheriff-,  when  such  tax  shall  be  laid,  shall  fail  to  collect  and  pay 
it  to  the  public  treasurer,  at  the  time  of  accountmg  for  State 
taxes,  the  said  justices  and  sheriff,  each  for  their  several  neglect, 
shall  be  deemed  guilty  of  a  misdemeanor,  and  shall  be  prose- 
Proviso,  cuted  in  the  superior  court  of  the  county  :     Provided,  however, 
That  no  county  shall  be  required  to  provide,  at  one  and  the 
same  time,  for  more  than  five  indigent  insane  persons. 
Amount  in cer-      30.  If  any  county  shall  fail,  for  the  space  of  one  year,  to 
ductedl'm"^  contribute  its  proper  tax  as  aforesaid   after  the  ^^me  is^due, 
schoolfund.      "The  president  and  directors  of  the  Literary  bund  ot  JNortli 
Carolina,"  shall  deduct  out  of  the  share  of  such  county  in  the 
common    school    fund,    next   to    be    distributed,    the    amount 
thereof,  and  pay  the  same  to  the  treasurer. 
Guardian  or  31.  Any  guardian  of  the  estate  of  an  insane  person,  or  any 
w"Ara3d  other  person,  who,  as  his  friend,  shall  execute  the  bond  mcn- 
Sonrorad-   tioncd   in  the   twenty-third  section   of  this  chapter,  and  any 
"Zfll^l  gtiardian  or  friend  who  shall  advance  money  for  such  person's 
■    ■  expenses  and  charges  at  the  asylum,  may  be  indemnified  and 
reimbursed  out  of  the  estate,  from  the  profits  or  sale  thereof,  if 
the   same   shall   appear  just,  by  applying  by  ^petition   to  the 
county  or  superior  court  of  such  insane  person's  settlement. 
Money  to  .up-      32.   All  money  applied  for  the  use  and  support  of  the  insti- 
port  asylum      tution,  and  the  indigent  insane,  shall  be  paid  to  the  treasurer 
rc'tasut'.      of  the  asylum  out  of  the  public  treasury,  on  warrants  drawn 
by  the   superintendent  and  countersigned  by  two  at  least  ot 
the  members  of  the  executive  connnittee. 
Money  belong-      33.   All  moiicy  and  the  proceeds  of  property,  given  to  the 
ing  t«  asylum    asylum,  and  all  money  arising  from  any  estate  which  may  be 


Chap.  7.] 


ATTACHMENT. 


91 


owned  by  the,  asylum,  shall  be  paid  into  the  public  treasury ; 
and  all  donations  shall  be  kept  as  a  separate  and  distinct  fund, 
and  shall  be  faithfully  applied  as  the  donor  may  have  directed. 

34.  The  treasurer  of  the  asylum  shall  pay  out  no  money 
except  on  the  warrant  of  the  superintendent,  or  the  executive 
committee ;  and  he  shall  execute  a  bond  payable  to  the  State 
of  North  Carolina,  with  two  able  sureties,  in  the  sum  of  ten 
thousand  doUars,  conditioned  for  the  faithful  discharge  of  his 
duties. 

35.  The  board  and  executive  committee  shall  cause  all  their 
proceedings  to  be  faithfully  and  carefully  written  and  recorded 
in  books,  and  to  this  end  may  employ  a  clerk.  And  the  books 
shall  at  all  times  be  open  to  the  inspection  of  the  ofhcial 
visitors  of  the  institution,  and  of  the  General  Assembly. 

36.  A  tax  of  one  and  three  fourths  cents  on  every  one  hun- 
dred dollars'  worth  of  land,  and  five  and  one  fourth  cents  on 
every  taxable  poll,  shall  be  annually  levied  for  the  support  of 
the  asylum,  and  collected  and  paid  into  the  public  treasury  as 
other  taxes ;  and  the  same,  with  all  other  moneys  belonging  to 
the  asylum,  shall  be  kept  in  a  separate  account. 

37.  The  governor,  judges  of  the  courts,  attorney-general,  and 
members  of  the  General  Assembly,  shall  be  ex  officio  visitors  of 
the  insane  asylum. 


lie  treasury, 
&e. 

Donations  how 
.ipplied. 
On  what  war- 
rant treasurer 
of  asj'lum  to 

lo  frive  bond. 


Board  and  ex- 
ecutive com- 
mittee to  record 
their  proceed- 
ings, &c. 


Tax  h\id  for 
support  of  asy- 
lum. &c.,  to  be 
paid  into  pub- 
lic treasury. 


Wlio  shall  be 
otfioial  visitors. 


CHAPTER    7. 


ATTACHMENT. 


Section 

1.  Attachment  may  issue   for  debt  or 

damages,  where  process  cannot  be 
served  by  reason  of  absence. 

2.  Also   on   behalf  of  a  citizen   of  the 

State  against  a  nou-resideut. 

3.  Not    to   issue   without  bond,  which, 

with  affidavit,  must  be  returned  to 
court. 

4.  Form  of  attachment.    Form  of  bond. 

Attachment  not  abated  for  want  of 
form. 
B.  Defendant    may   replevy   on    giving 
bail-bond.     Power  of  baih 

6.  Perishable   property   sold,   and   pro- 

ceeds deposited,  &c. 

7.  Garnishee  summoned;  to  answer  on 

oath.    Judgment  against  garnishee 
for  effects  in  his  hands. 

8.  Proceedings  against  garnishee  failing 

to  appear.     Judicial  attachment  to 
issue,  when. 

9.  Garnishee  denying  he  has  any  prop- 

erty, &c.,  issue  may  be  made  up. 


Section 

10.  Proceedings  where  attachment  levied 

on  property  claimed  by  another. 

11.  Specific   articles    confessed   by   gar- 

nishee valued  by  a  jury,  and  judg- 
ment for  their  value.  In  what  cases 
garnishee  exonerated  by  dehvery  of 
articles. 

12.  Judgment  conditional  where  money 

or  articles  are  due  or  deliverable  at 
a  future  day. 

13.  Publication  made  for  defendant  six 

weeks. 
1-i.  When  judici.al  process  may  issue. 

15.  Attachment  may  issue   against   ab- 

sentees exempt  fi-om  arrest,  who 
may  plead  without  replevying. 

16.  Also  for  injuries  to  person  and  prop- 

erty in  certain  cases.  Within  what 
time. 

17.  Such    attachment   dismissed   if   im- 

properly issued. 

18.  Attachment    before    justices    of    the 

peace. 


92 


ATTACHMENT. 


[CUAP.  7. 


Section 

(1.)  Returnable  within  tliirty  days. 

(2.)  Replevy  bonJ,  how  conditioned. 

(3.)  Garnishee  to  appear  and  answer. 

(4.)  Perishable  estate  to  be  sold. 

(5.)  Specific  articles  confessed  by 
garnishee,  how  valued.  How  and 
when  garnishee  may  be  exonerated 
by  delivery  of  said  articles.  Jlay 
stay  execution. 

(6.)  Claimant  of  property  attached 
before  a  justice,  may  remove  pro- 
ceedings to  county  or  superior  court. 
Must  give  bond  for  costs.  If  gar- 
nishee deny  possession  of  any  prop- 
erty, &c.,  proceedings  removed  to 
count}'  or  superior  court. 

(7.)  Publication  for  defendant. 

(8.)  Justice  to  file  attachment  bond. 
19.  When  real  estate  is  attached  and  con- 
demned by  a  justice,  proceedings 
returned  to  court. 


Sf:cTioK 

20.  Property  in  hands  of  executor,  ad- 

ministrator, or  trustee,  attachable 
by  bin  in  equity. 

21.  Creditors  may  file  bill  before  end  of 

two  years.  On  decree,  must  give 
refunding  bond  to  executor  or  ad- 
ministrator. 

22.  Lien  from  time  of  filing  bill. 

23.  Court  may  require  creditor  to  indem- 

nify executor,  &c.,  against  loss. 

24.  I'pon  what  proofs  and  terms  plaintiff 

may  have  decree. 

25.  Debtor  may  replevy  before  final  de- 

cree, by  giving  bond. 

26.  Plaintift' shall  state  his  debt  specially, 

and  make  affidavit  of  the  mattei-s  in 
his  bill. 

27.  Lien  on  vessels  for  work,  provisions, 

&c. 

28.  May  be  attached  and  held,  although 

the  owner  be  present. 


Attachment  1.  Upoii  Complaint  being  made  on  oath  to  any  judge  of  the 

deS  or  danv-"^    supreme  Or  superior  courts,  or  to  any  justice  of  tlie  county 
ages,  when       court,  or  clerlv  of  the  county  or  superior  court,  by  any  person, 
brserved'^by"*  ^is  attorney  or  agent,  that  any  person  indebted  to  him,  or  who 
reason  of  ab-     hath  endamaged  him  as  hereinafter  mentioned,  hath  removed, 
(■^'^''s.T. -^      or  is  privately  removing  himself  out  of  the  county,  or  absents 
1850,  c.  6.         himself  from  the  county  or  State,  or  conceals  himself,  so  that 
the  ordinary  process  of  law  cannot  be  served  on  him  ;  and  if  the 
plaintiti",  his  attorney  or  agent,  further  swears  to  the  amount  of 
his  debt  or  demand,  to  the  best  of  his  knowledge  and  belief, 
such  judge,  justice,  or  clerk,  shall  grant  an  attachment  against 
the  estate  of  such  debtor,  wherever  the  same  may  be  found,  or 
in  the  hands  of  any  person  indebted  to,  or  having  any  of  the 
effects  of  the  defendant,  or  so  much  thereof,  as  sliall  be  of  value 
sufficient  to  satisfy  the  debt  or  demand,  and  costs  of  such  com- 
plaint ;  which  attachment  shall  be  returned  to  any  court  where 
the  suit  is  cognizable,  and  shall  be  deemed  the  leading  process, 
and  the  same  proceedings  shall  be  had  thereon,  as  on  judicial 
attachments. 
Also  on  behalf     2.  When  a  person,  who  shall  be  an  inhabitant  of  another 
the^sta'tcT"  °     government,  and  cannot  be    personally  served  w'ith  process, 
against  anon-   shall  be  indebted  to  any  one,  a  resident  of  this  State,  and  hath 
sTc.  6  s.~2.      any  estate  within  the  same,  the  said  judges,  clerks,  or  justices, 
may  issue  an  attachment  against  the  estate   of  such  debtor 
under  the   rules   and  regulations   before   mentioned,  and  the 
same  proceedings  shall  be  had  thereon. 

3.  Every  judge,  justice,  or  clerk,  before  granting  an  attach- 
whi'c'Cwithtiie  ment,  shall  take  bond  and  security  of  the  party  for  whom  the 
aflidavit, must  gfime  siiall  be  issued,  his  attorney  or  agent,  payable  to  tlie  de- 
court.— R.  S.  fendant  in  double  the  sum  for  which  the  complaint  shall  be 
c.  e,  s.  3.  made,   conditioned    for    satisfying    all    costs    which    shall   be 


Not  to  Issue 
without  bond, 


Chap.  7.]  attachment.  93 

awarded  to  such  defendant,  in  case  the  plaintiff  shall  be  cast 
in  the  suit,  and  also  all  damages  which  shall  be  recovered 
against  the  plaintiff  in  any  suit  which  may  be  brought  against 
him  for  wrongfully  suing  out  such  attachment;  which  bond, 
together  with  the  affidavit  of  the  party  complaining  subscribed 
with  his  proper  name,  shall  be  returned  by  the  judge,  justice, 
or  clerk  taking  the  same,  to  the  court  to  which  the  attachment 
IS  returnable ;  and  every  attachment,  issued  without  bond  and 
affidavit  taken  and  returned  as  aforesaid,  shall  be  abated  on 
the  plea  of  the  defendant. 

4.  The  attachment  shall  be  in  the  following  form,  namely  : 

The  State  of  North  Carolina, 
To  the  sheriff,  constable,  or  other  officer  (as  the  case  may  be) 
of  the  county  of  greetino- : 

Whereas  A.  B.  hath  complained  on   oath  before   the  sub- Form  of  at 
scriber,  that  E.  F.  is  justly  indebted  to  him  in  the  amount  of ''■"^'"°''°'- 

,  and  oath  having  also  been  made  that  the  said  E.  F. 
hath  removed,  or  is  about  to  remove,  himself  out  of  your  coun- 
ty, or  conceals  himself,  or  absents  himself  from  the  county  or 
State,  so  that  the  ordinary  process  of  law  cannot  be  served  on 
hnn,  (or  is  an  inhabitant  of  another  government,  as  the  case 
may  be) ;  and  the  said  A.  B.  having  given  bond  with  security, 
according  to  law  :  We  therefore  command  you  that  you  attach 
the  estate  of  the  said  E.  F.  which  may  be  found  in  your  coun- 
ty, or  so  much  thereof,  repleviable  on  security,  as  shall  be  of 
sufficient  value  to  satisfy  the  said  debt  and  costs,  and  such 
estate  in  your  hands  to  secure  or  so  to  provide,  that  the  same 
may  be  liable  to  further  proceedings  thereupon  to  be  had  at 
the  court  to  be  held  for  the  county  of  at  on^he 

Monday  of  next,  (or  before  a  justice  of  the 

peace   of  the   county  of  within  thirty  days  from  the 

date  hereof)  so  as  to  compel  the  said  E.  F.  to  appear  and 
answer  the  complaint  of  the  said  A.  B.  when  and  where  you 
shall  make  known  to  the  said  court  (or  to  the  said  justice  of 
the  peace)  how  you  shall  have  executed  this  writ. 

Witness,  judge,  or  justice,  or  clerk  of  said  court,  the 

day  of  and  in  the  year  of  American  In- 

dependence. And  the  said  attachment  shall  be  signed  by  such 
judge,  or  justice,  or  by  the  clerk  of  the  court,  who  may  grant 
the  same.  ° 

The  bond  to  be  given  upon  obtaining  such  attachment  shall 
be  as  follows :  — 

Know  all   men  by  these  presents,  that  we  of  the  Fomi  ofbond. 

county  of  are  held  and  firmly  bound  unto  E.  F.  in  the 

sum  of  to  be  paid  to  the  said  E.  F.,  and  for  the  i)ay- 

ment  thereof  bind  ourselves  and  our  heirs  firmly  by  these  pres- 
ents, sealed  with  our  seals,  and  dated  the         day  of         a.  D. 

Tlie  condition  of  the  above  obligation  is  such,  that  whereas 
A.  B.  hath  prayed  and  obtained  an  attachment  against  the 
estate  of  the  said  E.  R,  for  the  sum  of  returnable  to 


94  ATTACHMENT.  [CuAP.  7. 

the  court  to  be  held  at  on  (or  before  a  justice 

of  the  peace,  within  thirty  clays  from  the  date  hereof):  — 

Now  if  the  said  A.  B.  shall  prosecute  his  said  suit  with  effect, 

or  in  case  he  fail  therein,  shall  well  and  truly  pay  to  the  said 

E.  F.  all  such  costs   and  damages  as  shall  be  awarded  and 

recovered  against  the  said  A.  B.  in  any  suit  or  suits  which  may 

be  hereafter  brought  for  wrongfully  suing  out  said  attachment, 

Atta  hment      then  the  above  obligation  to  be  void,  otherwise  to  remain  in 

not  abated  for   full  forcc  and  effect.     Provided,  hou'cver,  That  no  attachment 

— 'r's^Vc'™"  s'l^ll  ^^  abated  for  tlie  want  of  form,  if  the  essential  matters 

4.  "    '      '   "  expressed  in  the  foregoing  precedent  be  set  forth  therein. 
repkvy™!  gh-      ^-  When  any  estate  shall  be  attached  under  any  attachment, 
ing bail-bond,    judicial  or  original,  the  defendant,  his  attorney,  or  agent,  may 

at  any  time  before  final  judgment  or  writ  of  inquiry  executed, 
replevy  the  same  by  giving  a  bail-bond,  with  sufficient  security, 
to  the  sheriff  or  other  officer  serving  such  attachment,  which 
bond  the  sheriff  or  other  officer  is  required  to  take ;  provided, 

—  k"s°c  e^s'  *^^*  "^  ^^^^  °^  replevy  after  return  term,  the  plaintiff  shall  not 

5.  "    '   '  '  '  be  delayed  thereby  of  his  trial:  and  the  surety  in  said  bond 

shall  have  all  the  powers,  and  be  subject  to  all  the  liabilities, 

except  as  hereinafter  provided,  of  special  bail  in  other  civil  cases. 

Perishable  6.   When  the  estate  attached  shall,  by  three  freeholders  of 

anTpvocee*ck'   the  county  to  be  summoned  and  sworn  by  the  sheriff'  or  other 

deposited,  &c.  proper  officer  for  that  purpose,  be  certified  on  oath  to  be  perish- 

—  .    .  c.  6,  B.  ^j^j^^  ^^^  ^j^^  person  to  whom  it  belongs,  or  his  agent,  shall  not 

within  thirty  days  after  the  serving  of  such  attachment,  replevy 
the  same,  then  such  estate  shall  be  sold  at  public  vendue  by 
the  sheriff  or  other  officer,  the  same  being  first  advertised  at  the 
court  house  and  other  public  places  in  his  county,  at  least  ten 
days  before  the  sale ;  and  the  money  arising  from  the  sale, 
shall  be  liable  to  the  judgment  obtained  upon  such  attachment, 
and  shall  be  deposited  in  the  hands  of  the  clerk  of  the  court  to 
which  the  process  shall  be  returnable,  there  to  await  the  judg- 
ment. 
Garnishee  7.  When  the  sheriff  or  other  officer  shall  serve  an  attach- 

aBs;rerono'ath.  ment  on  any  person  supposed  to  be  indebted  to,  or  to  have  any 
effects  of,  the  defendant  in  the  attachment,  he  shall  at  the  time 
summon  such  person  as  a  garnishee  in  writing,  to  appear  at  the 
court  to  which  the  attachment  shall  be  returnable,  within  the 
first  three  days  of  the  first  term  thereof,  to  answer  upon  oath 
what  he  owes  to  the  defendant,  and  what  effects  of  the  defend- 
ant he  hath  in  his  hands,  and  had  at  the  time  of  serving   such 
attachment,  and  what  ctFects  or  debts  of  the  defendant  there 
are  in  the  hands  of  any  other,  and  what  person,  to  his  knowl- 
edge and  belief;  and  when  an  attachment  shall  be  served  on 
any  garnishee  in  manner  aforesaid,  it  shall  be  lawful  upon  his 
Jndgment        app(!arance  and  examination  to  enter  up  judgment  and  award 
sUce'fij'r ^effects  execution  for  the  plaintiff  against  such  garnishee,  for  ail  sums 
inhishands.— of  nioney  due  to  the  defendant  from  him,  and  for  all  etfects 
B.  S.  C.6,  s.  6.  _^^^j  estate  of  any  kind  belonging  to  the  defendant,  in  his  pos- 
session or  custody  for  the  use  of  the  plaintiff,  or  so  much  there- 


Chap.  7.]  ATTAceMENT.  95 

of  as  shall  be  sufficient  to  satisfy  the  debt  and  costs  and  all 
charges  incident  to  levying  the  same  ;  and  all  goods  and  elfects 
whatsoever  m  the  hands  of  any  garnishee  belonging  to  the 
defendant,  shall  be  liable  to  satisfy  the  plaintiif's  j Lodgment 
and  shall  be  delivered  to  the  sheriff  or  other  officer  servincr  the 
attachment.  ° 

1'  J^n?-f "^  garnishee  shall  be  summoned  as  aforesaid,  Proceedings 
ana  sliaU  tail  to  appear  and  discover  on  oath  as  directed,  the  ''P"','t.p"" 
court,  after  solemnly  calling  the  garnishee,  shall  enter  a  con- apjlff "° '° 
ditional  judgment  against  him,  and  thereupon  a  scire  facias 
shall  issue  against  him  returnable  to  the  next  term,  to  show 
cause  why  final  judgment  shall  not  be  entered  against  him- 
and  it  upMi  the  due   execution  thereof,  such  garnishee  shall 
tail  to  appear  at  the  next  term  and  discover  on  oath  in  manner 
aforesaid,  the  court  shall  confirm   said  judgment  and  award 
execution  for  the  plaintiff's  whole  judgment  and  costs  ;  and  if  Judicial  at- 
upon  examination  of  the  garnishee  it  shall  appear  to  the  court,  !,tlTh™ 
that  there  IS  any  ol  the  defendant's  estate  in  the  hands  of  any  rTL.I's™- 
person  who   has   not  been   summoned,  the   court  shall  upoiV''''^' '• 
motion  of  the  plaintiff  grant  a  judicial  attachment,  to  be  levied 
m  the  hands  ot  every  such  person  having  any  of  the  estate  of 
the  defendant  in  his  custody  or  possession,  who  shall  appear 
and  answer,  and  shall  be  liable  as  other  garnishees 

_  a  When  any  garnishee  shall  deny  that  he  owes  to,  or  has  G.™i.hee  de- 
!  «•  u  possession  any  property  of  the  defendant,  and  the  plain-  "''"'g  ''«  l'^^ 
iff  shall  on  oath  suggest  to  the  court,  the  contrary;  or  whe"i  tl^^^^kr 
any  garnishee  shall  make  such  a  statement  of  facts  that  the  I'  '.""'''  "P- 
court  cannot  proceed  to  give  judgment  thereon,  then  the  court  "  ''  "  '■ 
shall  order  an  issue  to  be  made  up,  which  shall  be  tried  by  a 
•" "7A  ""w,""  ^^^"  ^'"''^'''^  judgment  shall  be  rendered. 

W.   When  the  property  attached  shall  be   claimed  by  any  Proceediu.. 
other  person,  the  claimant  may  interplead,  first  giving  security  -•■-•V'"-'- 
for  such  costs  and  damages  as  may  be  awarded  agSnst  him,  l^'-i'm-ddm^ 
and  shall  at  the  same  time  file  a  petition  in  writi^ig,  settin-  -' ''.^V""'?"'' 
forth   the  particular  property  claimed,  and  by  what  right  J'r  ^  ' '' 

title  he  claims  the  same  ;  a  copy  of  which  petition  shall  be  • 
served  on  the  plaintiff  at  least  ten  days  before  the  ne^t  court 
when  the  court  shall  order  a  jury  to  be  impanelled  to  inquire 
in  whom  IS  the  right  of  the  property  levied  upon  ;  and  the  find- 
ing of  the  jury  shall  be  conclusive  as  to  the  parties  then  in 
court,  and  the  court  shall  adjudge  accordingly. 

_  11.  When  a  garnishee  shall  on  oath  confess  that  he  has  in  Specific  .r- 
liis_  hands  any  property  of  the  defendant  of  a  specific  nature  ticte confessed 
tion  for  tte''',  *r   '"'■'  ,^<^f^^"J-"t  by  any  security  or  assump^  t'ibf^rr.,. 
,  tion  lor  the  delivery  of  any  specific  article,  (except  as  herei  i-'"'--^' '""•  .i"''""- 
afterexeepted)  then  the  court  shall  immediately  order  a  juiT  """■■'''"'• 
to  be  impanelled  and  sworn  to  inquire  of  the  value  of  such 
specific  property,  and  the  verdict  of  the  jury  shall  subject  such 
garnishee  to  the  payment  of  the  valuation,  or  so  much  thereof 
as  shall  be  sufficient  to  satisfy  the  debt  or  damages,  and  costs  , 
of  the  plaintiff:  Provided,  that  if  such  garnishee  shaU  also  ^^.^S'eH" 


96  ATTACHMENT.  [ChAP.    7. 

onerated  bjr      state   ill  his  answer,  that  said   specific  property  was  left,  or 
I^rtPie^-R  S  deposited,  in  his  possession  by  the  defendant  as  a  bailment,  or, 
"'elsrs.   '■   '  that  he  hath  tendered  said  specific  articles  agreeable  to  con- 
tract and  they  were  refused  by  the  defendant,  and  that  he  then 
was  and  always  had  been  ready  to  deliver  the  same;  or  that 
he  had  such  specific  articles  at  the  time  and  place  specified  in 
such  covenant  or  agreement  ready  to  be  delivered,  and  is  still 
ready  to  deliver  the  same ;  and  such   statement  shall   be  ad- 
mitted by  the  plaintiff"  or  found  by  a  jury,  then  in  any  such 
case,  the  garnishee  shall  be  exonerated  by  the  delivery  of  such 
specific  articles  to  the  sheriff',  who  shall  proceed  as  if  the  at- 
tachment had  been  originally  levied  on  the  property. 
judRment  con-      12.   Whcu  any  garnishee  shaU  declare  in  his  answer,  that 
ditional,  where  ^[^g  money  or  specific  article  due  by  him  will  become  payable 
S^arTdue    or  deliverable  at  a  future  day,  and  the  same  shall  be  admitted 
or  deliverable    ,      ^[^g  plaintiff  or  found  by  a  jury,  in  such   case  conditional 
-k:'s"c!  6,"^ 'judgment  shaU  be  entered  against  the  garnishee,  and  the  plain- 
^-  ^-  tiff  may  obtain  judgment  against  the  defendant  for  his  de- 

mand, but  shall  not  take  final  judgment  against  the  garnishee 
without  notice  by  scire  facias. 
Publication  13.  Upon  the  return  of  an  original  of  judicial  attachment  to 

^ade^for.de-     ^|^g  court,  if  the  defendant  do  not  replevy,  the  court  shall  cause 
4eekr.-E.  S.  the  proceedings   to   be   made  known   by  publication  in  some 
c.  6,  s.  11.        newspaper  of  the  State  for  six  weeks,  and  after  such  publica- 
tion shall  have  been  made,  the  defendant  shall  be  proceeded 
against  in  the  same  manner  as  if  he  had  been  served  with  pro- 
cess and  failed  to  appear  and  plead. 
When  judicial       14.  No  judicial  process  shall  be  issued  against  the  estate  of 
proo^w  may^s-  ^^^^  person  residing  without  the  limits  of  the  State,  unless  the 
e^s'- 12. '     '''   same  be  grounded  on  an  original  attachment,  or  unless  the 
leading  process  in  the  suit  has  been  executed  on  the  person  of 
the  defendant  when  within  the  State. 
Attaclimeut  1-5.  Attachments  shall  extend  to  persons,  executors  and  ad- 

™ay  'ssue^^^  ministrators  excepted,  who  for  any  reason  are  not  subject  to  be 
•Sexempr"  arrested  nor  bound  to  give  bail,  provided  they  be  absent  from 
'^'h^mar'^ieadthe  State,  on  whatsoever  account,  so  that  the  ordinary  process 
withOTit^re''-  of  law  cannot  be  served  on  them.  Provided,  nevertheless, 
plevying.  rjij^^^^  ^j^^y  gj^j^H  ^^g  allowed  to  defend  the  suit  without  replevy- 

ing  the    property;  but   such    permission  to  defend  shall  not 
restore  to   their  custody  the   property  attached,  but  tlie  same 
shall  remain  in  custody  till  it  be  replevied,  and  be  subject  to 
satisfy  the  plaintift''s  recovery  as  in  other  cases. 
Also  to  injuries      10.  If  any  one   shall  do  an  injury  to  the  proper  person,  or 
to  person  and    property  of  another,  and  shall  within  three  months  Ihereafter 
ceTincises.    abscond  beyond  the  limits  of  the  State,  or  shall,  witliin  that 
time,  conceal  himself  within  the  State,  so  that  tlie  ordinary 
process   of  law  cannot  be  served  on  him,  his  estate  may  be 
attached  to  answer  the   damages   for  such   injury,  under  the 
same  rules   as   are   prescribed   for  original  or  jiulicial  attach- 
Within  what    mcnts  returnable  to  court,  provided  the  attachment  be  issued 
time.  within  three  months  after  the  injury  done. 


Chap.  7.]  attachmext.  qy 

17._  If  any  attachment  shall  issue  under  the  preceding  see-  Such  nttnch- 
tion,  in  any  other  manner  or  time  than  is  herein  allowed  the '"""''' '*™''^<^'l 
same  shall  be  void,  and  the  court  shall  not  proceed  therein.        Slrer^'"^ 

18.  Attachments  for  debts  and  demands,  within  the  jurisdic-  Attachment 
Tion  ot  a  justice  oi  the  peace,  may  be  issued  by  and  ao-ainst '"='''™='.i"'^'''=e 
all  such  persons,  and  under  the  same  circumstances,  rules  and"''""'  """"'■ 
regulations  as  are  mentioned  in  the  preceding  sections  of  this 
chapter,  with  the  following  modifications  of  those  provisions- 

(1.)    lhe_  attachment  shall  be  issued  by,  and  returnable  be- Returnable 
tore,  a  justice  of  the  peace,  within  thirty  days  from  the  date  '""'"'  ""■■'? 
thereof:  And  all  the  process  issuing  thereon  shall  be  return-     '''" 
able  before  a  justice  of  the  peace. 

(2.)   The  replevy  bond  shall  be  conditioned  to  appear  before  Replevy  bond, 
tne  justice  before  whom  the  attachment  is  returnable  and  to ''"'^ '=°"'''''°°- 
abide  by  and  perform  the  order  and  judgment  which  may  be  "^' 
made  in  the  attachment,  ^ 

■    ?'}   ^.^'""j^jiees  shall  appear  before  the  justice,  and  be  sub-  Garnishee  to 
ject  to  tlie  like  judgment  and  recovery  as  hereinbefore  pro-  '"PP"'''  '""^ 
^nded :  Provided,  hoioever,  that,  when  a  conditional  judgment  ""''"' 
shall  be  rendered  against  him,  the  scire  facias  prescribed^'in  the 
twellth  section  shall  be  for  his  appearance  at  such  time  and 
place  as  the  justice  shall  appoint. 

(4.)  When  the  estate  attached  shall,  by  three  freeholders,  to  Perishable  es- 
be  summoned  and  sworn  for  that  purpose  by  the  officer  be  ^^  "*  ^^  '°''*- 
certified  on  oath  to  be  perishable,  and  the  same  shall  not  be 
repevied  in  thirty  days  after  attaching  it,  then  such  estate 
shall  be  sold  at  public  vendue  by  the  officer,  in  the  manner 
prescribed,  and  the  proceeds  be  retained  by  the  officer  to  await 
iinal  judgment  in  the  case. 

■    t^'^  i^^f'^  ^^^  ga^iishee  shall,  on  oath,  confess  that  he  has  Specific  ar- 
in  nis  hands  any  property  of  the  defendant  of  a  specific  nature  ''<'''='  confessed 
oris  indebted   to  the  defendant  by  a  secui%  or  assumption;  hLnSueT' 
tor  the  payment  or  delivery  of  any  specific  articles,  then  the 
justice  shall  immediately  order  three  freeholders  to  be  sworn 
to  inquire  of  the  value  of  such  specific  property,  and  their  ver- 
dict shall  subject  the  garnishee  to  the  payment  of  such  valua- 
tion,  or  so  much  thereof  as  shall  be  sufficient  to  satisfy  the 
debt  and  costs  of  the  plaintiff":  Provided,  nevertheless,  that 
every  garnishee  who  may  on  oath  confess  that  he  has  in  his 
hands  any  specific  property  of  the  defendant,  left  or  deposited 
in  his  possession,  by  such  defendant,  may  always  exonerate  him- 
^nlv^t*;     r""!  '*  ^°  ^''"^  constable  or  other  officer  who  levied  Ho.-nnd  when 
sucti  attachment,  or  may  levy  the  execution  issued  thereon  •  s^mi^hee  n.uj- 
Provided,f>a-ther,  that  when  judgment  shall  be  entered  against  t^^ll^^ 
any  garnishee,  he  shall,  on  giving  security,  have  the  sam?  stay  :f  "^  "'■"<''"''-^- 
of  execution  as  if  he  had  been  original  defendant  in  the  suit.  ^  ^t'  ^^" 

(0.)    When  the  property  attached  shall  be  claimed  by  any  Claimant  of 
other  person,  and  to  determine  the  right  thereof  a  iury  may  be  m'Vr- 
necessary,  the  claimant  may  remove  the  proceedings  to  the  HusTL'ty 
next  county  or  superior  court,  as   he  may  choose,  where  an  ":''\';™  P?: 
issue  shall  be  made  up  and  tried  by  a  jury:  Prodded, /loic^^^^y^^^ 


9  "  "      *'  '  pcriuf  coui't. 


98  ATTACHMENT.  [ClIAP.    7. 

Must  give  bond  ei^er,  that  the  claimant,  on  removing  the  same,  shall  execute 
for  costs.  bond  with  sufficient  security  to  pay  the  costs  on  his  failure  to 

Ifgarnisheede- prosecute  the  same  with  eifect.  And  when  the  garnishee 
ny  possession  shall  deny  that  he  owes  to,  or  has  in  his  possession  any  prop- 
ty,proceed?'"^'  erty  of  the  defendant,  and  the  plaintiff  shall,  on  oath,  suggest 
ings  to  be  to  the  justice  the  contrary;  or  when  any  garnishee  shall  make 
removec.  ^^^^  ^  statement  of  facts  tiiat  the  justice  cannot  give  judg- 

ment thereon,  then  the  justice  shall  return  the  proceedings  to 
the  next  county  or  superior  court,  as  the  plaintiff  may  choose, 
in  order  that  proper  issues  may  be  made  up  and  tried  by  a 
jury;  and  judgment  maybe  rendered  by  the   court  upon  the 
whole  cause. 
Publication  for      (7.)   Upon  the  return  of  an  attachment  before  a  justice  of 
E!'^S?c^6'sri3  the  peace,  if  the  defendant  do  not  appear  and  replevy,  the  jus- 
14, 15, 16'.       '  tice  shall  cause  the  proceedings  to  be  made  known  by  adver- 
tisement at  two  or  more  public  places  within  the  county,  for 
thirty  days;  and  after  such  publication  the  defendant  shall  be 
proceeded  against,  as  if  he  had  been  personally  served  with 
process. 
Justice  to  file        (8.)  The  bond  and  affidavit  taken  on  issuing  the  attach- 
attaciiment       rnent  shall  be  filed  by  the  justice  with  his  official  papers. 
When  real  es-        19.  When  a  constable,  or  other  ofHcer,  shall  attach  any  real 
tate  is  attached  estate,  in  any  case  returnable  before  a  justice  of  the  peace,  and 
bya'justice,     the  justice  shall  condemn  the  same  for  the  satisfaction  of  the 
proceedings  re- plaintiff's  debt,  the  justice  shall  return  the  proceedings  to  the 
— R.'^S.  c?6"s!  next  county  court,  which  may  affirm  the  judgment  of  the  jus- 
20.  tice,  and  issue  a  venditioni  exponas,  as  in  case  of  a  levy  on 

land  under  a  magistrate's  execution. 
Property  in  20.  When  any  debtor,  who  resides  beyond  the  limits  of  the 

hands  of  exec-  gtate,  shall  be  entitled  to  any  personal  estate  or  effects,  or  to 
trator%r'tms-  the  use  of  such  estate  and  effects,  in  the  hands  of  an  executor, 
tee,  attachable  administrator,  or  trustee,  or  any  estate  in  the  hands  of  any  one 
tj\— 'i862,c?5o"  which  cannot  be  attached  at  law,  or  levied  on  under  execution, 
the  creditor  may,  Avithout  obtaining  judgment  at  law,  bring 
his  bill  in  equity  against  the  debtor  (making  all  proper  parties 
according  to  the  course  of  the  court)  and  have  the  same  de- 
creed to  the  satisfaction  of  his  debt. 
Creditors  may       21.  The  plaintiff  may  file  his  biU  when  the  fund  is  in  the 
endof'two'^""'  hands  of  an  executor  or  administrator,  before  the  end  of  two 
years.  years  from  his  qualification,  but  shall  not  have  a  final  decree 

gi've''''rcfunXf.^  for  payment  within  that  time ;  and  shall  execute,  on  obtaining 
bond  to  exec'",  a  decree,  if  required  by  the  executor  or  administrator,  such  a 
&;c.— 1852,       refunding  bond  as  might  have  been  demanded  of  the  debtor 

c.  oU.  o  o  ^  , 

himself  seeking  to  get  possession  of  the  fund. 
Lien  from  time      22.    From  the  time  of  filing  the  bill,  the  debtor  shall  not  be 
i86^o!"cf 5^0."' ~  at  liberty  to  assign  his  interest  in  the  fund  to  the  injury  of  the 

plaintiff. 
Court  may  rt-      23.    The  court,  in  its  discretion,  may  require  of  the  plaintiff, 
to'iiKiemni'fy"    at  any  time  before  or  at  the  decree  for  satisfaction  out  of  the 
ex'r,  &c.,         fund,  a  full  and  ample  indemnity  by  bond  with  security,  or 
1862,'c.  5o!'      otherwise,  for  the  protection  of  the  defendant  in  whose  liands 


Chap.  7.]  attachment.  99 

may  be  the  fund,  against  all  loss  which  may  arise  to  him  from 
his  being  required  to  account  by  suit  out  of  the  State,  for  the 
estate  or  any  part  thereof  which  may  be  decreed  to  satisfy  the 
plaintifi''s  debt. 

24.  No  decree  shall  pass  for  the  plaintiff,  unless  he  prove  Upon  whnt 
his  debt,  notwithstanding  any  decree  pro  confesso;  nor  unless  P™."**.  &  t«™s 
he  also  prove  to  the  satisfaction  of  the  court,  that  the  debtor  W  dec'r'lo!'- 
had  not  in  the  State  at  the  filing  of  the  bill,  enough  estate,  on  "'^^'  ''■  ^^■ 
which  an  attachment  at  law  might  have  been  levied,  to  satisfy 

his  debt  or  demand. 

25.  The  debtor  may,  at  any  time  before  final  decree  for  sat-  Debtormnvre- 
isfaction,  re])levy  the  property  by  executing  bond  with  security  piey,'''''''"''' 
payable  to  the  plaintiff,  to   abide  by  and  perform  such  decree  ^^mgXZ^i^l 
as  may  be  made  against  him,  and  thereupon   he  shall  be  per-  "^^'  "■  ^°- 
mitted  to  plead,  answer,  or  demur  to  the  bill,  upon  such  terms 

as  the  court  may  deem  proper,  having  in  view  a  speedy  and 
just  trial  of  the  cause  :  on  which  bond  the  court  may,  at  the 
passing  of  the  decree,  render  judgment  for  the  amount  decreed 
against  the  defendant. 

26.  The  plaintiff  shall  state  specially  his  debt  or  demand,  Plaintiff  shall 
as  near  as  he  can,  and  shall  make  affidavit  of  the  truth  of  the  f  goiaiiY  tmi 
matters  contained  in  his  bill,  according  to  his  information  and  make" affidavit 

belief.  of  the  matters 

27.  Whenever  any  debt  shall  be  contracted  by  the  master,  1^52^0.50.'" 
owner,  agent,  or  consignee  of  any  ship,  steamboat,  or  other  j^^^Z^^^o 
vessel,  for  or  on  account  of  any  work  done,  or  materials  fur-    '  '       ''■  '    " 


.  visions. 


nished,  for  the  building,  repairing,  furnishing,  or  equipping  of  ^^^*' *=•  2-5' 
the  same,  or  for  provisions  or  stores  for  the  same,  within  this 
State,  or  on  account  of  the  wharfage  and  expenses  of  keepino- 
such  ships,  steamboats,  or  other  vessels  in  port,  including 
the  expense  incurred  in  employing  persons  to  take  charge  of 
the  same,  such  debt  shall  have  a  lien  on  the  ship,  steamboat, 
or  other  vessel,  her  tackle,  apparel,  and  furniture,  and  shall  be 
preferred  to  all  other  liens  thereon,  except  mariners'  wages. 

28.    Any  creditor  to  whom  a  debt  may  be  due  in  manner  Mav  be  ot- 
aforesaid,  may  proceed  against  such  ship,  steamboat,  or  other '"~'^"'^' 


tached  and  held 


vessel  by  attachment,  and   cause  the  same  to  be  seized  and  owner  te  pL- 
held  for  the  satisfaction  of  his  debt,  as  in  other  cases  of  orig-  ent'-issi.  c 
inal  attachment ;  and  the  proceedings  in  such  case  shall  be  ^  ' ''  ^' 
thenceforth  conducted  as  in  other  attachment  causes:    Pro- 
vided, That  the  presence  of  the  owner  or  master  of  any  such 
vessel  shall  not  prevent  the  proceeding  by  attachment,  as  in 
case  of  his  absence  :  but  the  creditor,  his  agent,  or  attorney, 
before  suing  out  his  attachment,  shall,   in  all  cases,  first  verify 
his  debt,  and  the  manner  in  which  it  was  contracted,  by  affi- 
davit, and  shall  enter  into  bond  conditioned  for  the  indemnity 
of  the  defendant,  in  the  manner  provided  by  law. 


,„i^Y^',  ■";    !'"'i"','  '  ^'^  ^-  ^^^-      '^''^  '""2'  «"'•'>  6  !'"«•  245,  5  lb.  384,  4  Dev.  511.    Far 
wuai  not:  tvrls,  1  Ire.  278;  nnhqmdated damv<jes,  2  Ire.  282.     In  what  cases,  Bus.  2G0, 


100 


ATTORNEY-GENERAL   A2^D   SOLICITORS.       [ClIAP.    8. 


1  Hay.  365.  When  void,  2  Dev.  343,  2  D.  &  B.  138,  5  Ire.  374.  Remerlyfor  wrongfully 
suing,  3  Hawks,  345.  Jrrerjtihrilies  waived,  2  D.  &  B.  502,  2  Dev.  343.  Uliat  may  lie 
attached,  2  Car.  L.  R.  254.  Girj>enler's  tools:  wlien,  1  .Tones,  62.  Whil  nut:  trusts, 
10  Ire.  295,  3  lb.  459,  4  Dev.  172;  money  in  hands  of  clerk;  3  Ire.  365;  unliquidalcd 
damages  owing  from  garnishee,  5  Ire.  374;  properly  ofjirm  for  separate  debt,  11  Ire.  407, 
4  Dev.  367;  negotiable  note,  11  Ire.  664;  mere  rights,  2  Jones  Eq.,  9  Ire.  42.  Lien 
waived  byji.  fa.  3  JIur.  63. 

Sect.  3.   1  Dev.  397. 

Sect.  6.   9  Ire.  197,  3  lb.  459. 

Sect.  7.  Notice  creates  lien.  Bus.  3.  Garnishee:  vhen  liable,  7  Ire.  438,  9  lb.  116; 
may  move  to  dismiss,  10  Ire.  174;  what  may  plead,  1  Mur.  468;  priority  of  creditors,  1  D. 
&  B.  217. 

Sect.  9.   Practice,  3  Dev.  96. 

Sect.  10.   Interpleading,  6  Ire.  233,  1  D.  &  B.  202. 

Sect.  18.   (1)  13  Ii-e.  72,  5  lb.  175,  (7)  7  lb.  400. 


CHAPTER    8. 


ATTORNEY-GENERAL  AND  SOLICITORS. 


Att'y-general 
to  attend  su- 
preme court 
and  prosecute 
in  third  circuil 
— R.  S.  c.  7, 
s.  1. 


Section 

1.  Attorney-genera!  to  attend   the    su- 

preme court  aud  prosecute  in  third 
circuit. 

2.  Six  solicitors  appointed;  to  hold  office 

four  years,  and  prosecute  in  the  cir 
cuits. 

3.  Vacancy  in  tlie  office  of  solicitor,  hoiv 

filled. 

4.  County  solicitor  appointed  by  county 

court.    Terra  of  office  and  duty. 


Section 

5.  Shall  examine  clerk's  and  register's 

offices,  to  see  they  are  properly  kept; 
unless  excused  by  a  majority  of  the 
justices. 

6.  Solicitor  to  report  the  condition  of  the 

offices. 

7.  Clerk  and  register  indictable  for  omis- 

sion of  duty. 

8.  Countj^  court  to  pay  solicitors  for  ex- 

amination. 


Six  solicitors 
appointed. 
To  hold  office 
four  years,  and 
prosecute  in 
the  circuits. — 
R.  S.  c.  7,  s.  2. 


Vacancy  in  the 
office  or  solici- 
tor, how  filled. 
— K.  S.  c.  7, 


County  solici- 
tor appointed 
by  CO.  coui't. 


1.  The  attorney-general  shall  attend  to  all  the  business 
which  may  be  carried  to  the  supreme  court  of  the  State  for 
adjudication,  wherein  the  State  may  be  concerned  or  in 
any  manner  have  an  interest.  He  shall  also  attend  and  prose- 
cute in  behalf  of  the  State  in  the  superior  courts  comprising 
the  third  circuit. 

2.  In  addition  to  the  attorney-general,  there  shall  be  ap- 
pointed by  joint  vote  of  both  houses  of  the  General  Assem- 
bly, six  solicitors  who  shall  hold  their  offices  for  four  years 
and  no  longer,  and  shall  attend  and  prosecute  in  behalf  of  the 
State  in  the  respective  circuits  for  which  they  shall  be  ap- 
pointed. 

3.  Whenever  any  vacancy  shall  happen  by  the  death,  re- 
moval, or  resignation  of  any  of  the  solicitors  in  the  recess  of 
the  legislature,  tlie  judge  then  riding,  or  wlio  is  next  to  ride, 
the  circuit,  wherein  such  vacancy  has  happened,  shall  appoint 
a  solicitor,  who  shall  hold  the  office  until  the  end  of  the  ses- 
sion of  the  General  Assembly,  which  shall  first  happen  subse- 
quent to  lii.s  appointment. 

4.  The  court  of  pli'us  and  quarter-sessions,  a  majority  of 
the  justices  being  present,  shall  appoint  an  attorney  i)ropcr]y 
qualified  to  act  for  and  in  behalf  of  the  State  in  the  county, 


Chap.  9.]  attorneys  at  law.  jqj 

^vho  shall  hold  his  o/Hce  during  the  term  of  four  years,  and  To™  „f  office 

shall  prosecute  all  matters  cognizable  in  the  court  of  pleas  and  ' 

quarter-sessions,  wherein  he  shall  be  appointed,  in  behalf  of 
the  State. 


and  dutv 


5.    The  county  solicitor,  at  or  shortly  before  the  session  of  si.nii  examine 
every  court  m  the  county,  for  which  he  is  appointed,  shall  ex-  "^"'^'^  "'"• 
amine  the  offices  of  the  register  and  clerks  of  the  county  and  Tef^trrttv 
superior  court,  in  the   presence   of  the  respective   officers    to  ^"^  P™P«'-iy 
ascertain  whether  inventories,  accounts  of  sale,  accounts  cur-  " 
rent,  wills,  deeds,  bills  of  sale,  reports,  official  bonds,  and  all 
other  papers  required  to  be  recorded  and  registered,  have  been 
duly  recorded  and  registered ;  and   also  whether  the   several 

mol?ml.nt.T"^'-?r;^''"   '^^","''^  °"*   ^"'^  ^^P*  ''^   aunlessexcnsed 
proper  manner:  Provided,  hmvever,  that  the  county  court    a  i^y  * ""Jo^'y 
majority  of  the  justices  being  present,  may  dispense  with  such  "^itftl- 
examination,  and  the  county  attorney  shall  not  make  such  ex-  L  2.    '      '  ' 
ammation  before  thirty  days  after  the  rise  of  each  court. 

fa.    rhe  county  solicitor  shall  make  a  faithful  report  in  writ-  Solicitor  to  re- 
ing  _ot  the  several  matters   hereby  directed  to  be  examined  P^t  the  condi- 
specially  stating  in  what  respect,  if  any,  there  has  been  an' c'eT-i844  f  " 
omission  of  duty  by  the  officers  aforesaid ;  and  his  report  in  t-  ^       ' 
rela  ion  to  the  register  and  clerk  of  the  county  court  shall  be 
made  to  the  county  court,  and  in  relation  to  the  clerk  of  the 
superior  court  to  the  attorney-general  or  solicitor  of  the  supe- 
rior court,  every  term  of  the  said  court. 

.,7'nn?— "'  it  shall  appear,  by  such  report,  that  there  has  been  Cl'k  and  reg-r 
an  omission  of  duty  in  any  of  the  said  officers,  the  county '°<"'='^'l  ^"^ 
court  or  the  prosecutmg  officer  in  the  superior  court,  if  in  their  t7-i8T4:"5: 
01  his  opinion  the  public  interest  requires  it,  may  cause  an  in-  -  ^'  ^• 
dictment  to  be  preferred  for  such  reported  breach  of  duty  •  and 
on  conviction,  the  defendant  shall  be  fined,  or  fined  and  re- 
moved from  his  office,  at  the  discretion  of  the  court;  Provided 
however    that  this  indictment  shall  not  exempt  any  of  said 
officers  from  being  indicted  for  other  breaches  of  duty  as  pre- 
scribed by  law.  •'        ^ 

8.    The  county  court  shall  allow  the  county  solicitor  ade- Co.  com-t  to 
quate  compensation  for  the  duties  required  of  him  by  the  fifth  F?  ^°"<^i'o'-s 
and  sixth   sections  of  this  chapter,  to  be  determined  by  the '^-784"%. 
ber'nf ""  T^""^^  I    ^^J^^^'-^^^  being  present,  or  by  any  num-  ''  '■  '■ 
ber  of  justices,  which,  by  special  law  may  be  authorized  to 
allow  claims  against  the  county. 


Section 

1.  Attorneys  at  law  licensed  by  judges 

of  supreme  court. 

2.  I'ersons  from  other  States,  licensed, 

when. 

9 


CHAPTER   9. 

ATTORNEYS  AT  LAAY. 


Section 

3.  Attorney  to  take  oaths. 

4.  To  pay  a  U\x  for  license. 

5.  To  pay  costs  of  suit  dismissed  for  his 

failure  to  file  a.  declaration. 


102  ATTORXEYS    AT   LAW.  [ChAP.    9. 


Section 

6.  (iiillty  of  frauJ,  to  pay  double  dam- 

nges. 

7.  Not  to  take  greater  tax  fees  than  al- 

lowed by  law. 


Sectiom 

8.  .lustice  of  the  peace  not  to  practise  in 

the  county  court  of  his  county. 

9.  Attorney  appointed  a  justice  to  resign 

his  claim  to  practise  in  the  county 
court. 


Att'ys  licensed  1.  Persoxs  who  may  apply  for  admission  to  practise  as 
^•^ilemTcm.rt  attorneys  in  any  court,  shall  undergo  an  examination  before 
— 'eI'To^m'  two  or  more  of  the  judges  of  the  sui^reme  court ;  and,  on  re- 
^-  ceiving  certificates  from  said  judges   of  their  competent  law 

knowledge  and  upright  character,  shall  be  admitted  as  attor- 
neys in  the  courts  specified  in  such  certificates. 
Persons  from        2.  No  person  coming  into  this  State  from  any  other  State, 
other  states      ^^  ^^^^^^  foreign  country,  with  an  intention  to  practise  the 

-R.'s.'c!s™:  law,  shall  be  admitted  to  practise  as  an  attorney,  unless  he 
2.  gijall  have  previously  resided  one  year  in  this  State,  or  shall 

produce  to  the  said  judges,  a  testimonial  from  the  chief  magis- 
trate of  such  State  or  country,  or  from  some  other  competent 
authority,  that  he  is  of  unexceptionable  moral  character. 
Attorney  to  3.  Attorneys  before  they  shall  be  admitted  to  practise  law 

take    oaths.-  gj^^j,^  j,^  ^^^^^^  ^^^^.^  beloYC  the  judges  thereof,  take  the  oath  pre- 
'  scribed  for  attorneys,  and  also  the  oaths  of  allegiance  to  the 
State,  and  to  support  the  constitution  of  the  United  States,  pre- 
scribed for  all  public  officers  ;  and,  upon  such  qualification  had, 
and  oath  taken, may  act  as  attorneys  during  their  good  behavior. 
To  pay  a  tax        4.  No  attorney  shall  be  permitted  to  practise  until  he  shall 
for    license.-    ^Q^y^g  the  receipt  of  the  proper  clerk,  showing  that  he  has 

K.  S.  c.  o,  s.  4.  r  ^,     , . 

paid  the  tax  for  his  license. 
To  pay  costs  of     5.  When  a  plaintiff  shall  be  compelled  to  pay  the  costs  ot 
for  h^'iHihim    his  suit,  in  consequence  of  a  failure  on  the  part  of  his  attorney 
to'fiio''a'dc"i.t  to  file  his  declaration   in   proper  time,  he  may  warrant  such 
ratmn.-U.  .S.  attorney  for  all  the  costs  by  him  so  paid,  and  the  receipt  of  the 

'  *'  clerk  may  be  given  in  evidence  in  support  of  such  claim. 

Guilty  of  fraud,  6.  If  any  attorney  shall  commit  any  fraudulent  practice,  he 
damaget-U  shall  be  liable  in  an  action  on  the  case  to  the  party  injured, 
S^c.8,  s'.  G.  '■  and  on  the  verdict  passing  against   him,  judgment  shall  be 

given  for  the  plaintift'to  recover  double  damages. 

Not  to  take  7.  If  an  attorney  shall  knowingly  take  or  receive,  directly  or 

&-mai-     indirectly,  any  other  or  greater  tax  fees  in  civil  cases  than  he 

lowed  by  law.  [g  by  law  entitled  to,  it  shall  be  deemed  a  misdemeanor  in  Ins 

-"■  *^- "^^  ^' '■  profession  ;  and  such  malpractice  being  made  known  to  any 

court,  such  court  shall  direct  the  attorney-general,  or  solicitors 

on   behalf  of  the  State,  to  prosecute   by  indictment  for  such 

malpractice;  and  if  such  attorney  shall  be  thereupon  convicted 

by  the  verdict  of  a  jury,  he  shall  be  thenceforth  dismissed  from 

his  practice  as  an  attorney,  for  one  year. 

■lustice  of  the        8    No  court  of  pleas  and  quarter-sessions  shall  admit  to  the 

Ktis"!' the  bar  of  the  court,  as  a  practising  attorney,  any  justice  of  tlie 

cotinty  court  of  pgace  of  that  county,  until  he  shall  first  tender  to  the  court  a 

U.'s.T8,tl  resignation  of  his  office,  to  be  by  the  court  transmitted  to  the 

competent  authority. 


CrAF.    10.]  AUCTIONS   AND    AUCTIONEERS.  103 

9.  Whenever  any  practising  attorney  in  a  court  of  pleas  and  Attorney  ap- 
quarter-sessions  shall  accept  the  appointment  of  a  justice  of  See  tore"/ u' 
the  peace  in  the  county,  wherein  he  so  practises,  he  shall,  be-  iii^ciaim^tr 
fore  he  is  permitted  to  take  the  oath  prescribed  for  a  justice  of  fountf  court" 
the  peace,  cause  to  be  entered  on  the  records  of  said  court  a  -  R-  "S-  c.  s,  s] 
resignation  of  all  claim  to  practise  therein  as  an  attorney,  so  '''' 
long  as  he  shall  keep  the  oflice  aforesaid  ;  and  during  the  time 
he  shall  keep  the  said  office,  he  shall  not  be  heard  or  received 
as  an  attorney  of  that  court. 


CHAPTER    10. 

AUCTIONS  AND   AUCTIONEERS. 


Section 

4.  V.icancy  may  be  filled. 

5.  Penalty  of  two  iunrtred   dollars  for 

acting  without  appointment. 

6.  Wliat  sales  exempt  from  auction  tax. 
.  7.  Fees  not  to  exceed  two  and  a  half  per 

cent.     One  per  cent,  to  be  paid  by 
town  auctioneers  to  the  town. 


Section 

1.  Auctioneers  appointed  by  county  court 

to  give  bond  for  faithful  discharge  of 
duty. 

2.  Duties    of   auctioneers.      To    render 

semiyearly  to  clerk,  sworn  accounts 
of  auction  sales,  and  amount  of  tax. 

3.  Towns  may  appoint  auctioneers,  who 

shall  also  give  bond  and  be  uuder 
lilie  duties. 

.         J-^^^  several  courts  of  pleas  and  quarter-sessions,  a  major-  Auctioneers 

Sm    after  \lfe''i^l^f"^  present,  may  annually,  at  the  first  ?E';'c1JjI,o 
term,  aitti    tlie  first  day  ot  April,  appoint  in  their  respective  give  bond  for 
counties  for  the  term  of  one  year,  not  more  than  three  persons  cwl^'.fr. 
to  exercise  the  trade  and  business  of  auctioneer  therein,  each  E.'srC  9,s  Z^ 
ot  whom  shall  execute  bond  in  the  sum  of  five  thousand  dol- 
lars, payable  to  the  State  of  North  Carolina  with  ample  secu- 
^^^7  *°,'^'=  JU'^'ged   of  by   the   court,  conditioned  that  he  will 
taithfully  perform  all  the  duties  required  of  auctioneers. 

2.  It  siiall  be  the  duty  of  such  auctioneers,  while  they  shall  Duties  of  auc- 
continue  in  their  employment,  on  the  first  days  respectively  of  "°"<"^''^- 
October  and  April,  to  render  to  the  clerks  of  the  county  courts  s^eml'j-eari';- to 
ot  their  respective  counties,  a  true  and  particular  account  in  clerk  sworn  ac- 
M^riting  of  all  the  moneys  made  liable  to  duty  by  law,  for  trLil  Tnd' 
which  any  goods,  wares,  or  merchandise  may  have  been  sold  p"?'""  °^  '^''• 
at  auction,  and  also   at  private  sale,  where  the  price  of  the  '''^'''^' 

goods,  wares,  and  merchandise  sold  at  private  sale  was  fixed 
or  agreed  upon  or  governed  by  any  previous  sale  at  auction 
ot  any  goods,  wares,  and  merchandise  of  the  same  kind- 
\vhich  account  shall  contain  a  statement  of  the  gross  amount 
ot  sales  by  them  made  for  each  particular  person  or  company 
at  one  time,  the  date  of  each  sale,  the  names  of  the  owners  of 
the  goods,  wares,  and  merchandise  sold,  and  the  amount  of 
the  tax  due  thereon,  which  tax  they  shall  pay  as  directed  by 
law :  And  which  statement  shall  be  subscribed  by  them  and 


104  AUCTIONS   AND    AUCTIONEERS.  [ChAP.    10. 

sworn   to  before  the  clerk   of  the   said   court,  who  is  hereby 
authorized  to  administer  the  oath.     And  it  shall  be  their  fur- 
ther duty  to   account  with   and   pay  to  the   person   entitled 
thereto,  the  moneys  received  on  the  sales  by  them  made. 
Townsm.iynp-      3_  fhc  commissioners  of  the  several  incorporated  towns  of 
K  s'lwu  a^i'so  the  State  may,  in  their  discretion,  appoint  during  the  first  week 
give  bomi,  and  Jn  j^p^il  in  every  year,  as  many  as  three  auctioneers  for  their 
duti'es.— li'.  S.    respective  towns,   each   of  whom   shall  execute    bond,  to  be 
c.  9,  s.  5.  approved  by  the  commissioners,  payable  to  the  State  of  North 

Carolina,  in  like  manner,  penalty,  and  condition  as  is -pre- 
scribed in  the  first  section;  which  bond  shall  be  returned  by 
the  commissioners  to  the  clerk  of  the  county  court,  to  be  by 
him  safely  kept. 
Vacancy  may  4.  In  case  of  vacancies,  other  auctioneers  may  be  appointed 
c.%*',"s^'6r'^'  ^'  to  fill  the  same,  by  the  authority   first  appointing,  under  the 

rules  and  regulations  above  prescribed. 

Penalty  of  5.  No  pcrsou  shall  exercise  the  trade  or  business  of  an  auc- 

wfthout'ap'i''""  tioneer,  by  selling  any  goods,  wares,  or  merchandise  by  auc- 

pointment.— R.  tion,  or  by  any  other  mode  of  sale  whereby  the  best  or  highest 

S.  c.  9,  s.  6.       bi jjei-  is  deemed  to  be  the  purchaser,  unless  such  person  shall 

be  appointed  an  auctioneer  pursuant  to  the  provisions  of  this 

chapter,  on  pain  of  forfeiting  to  the  State,  for  every  such  sale, 

the  sum  of  two  hundred  dollars,  which  shall  be  prosecuted  to 

recovery  by  the  county  solicitor. 

What  sales  6.  Nothing  in  this  chapter  contained   shall  extend  to  any 

exempt  from         j    |^    auction  of  goods,  Wares,  and  merchandise  made  pur- 

auction   tax. —  J  o^'  '  -ii. 

K. S.c.9,s.  1,2.  suant  to,  and  m  execution  of,  any  order,  decree,  or  judgment 
of  the  courts  of  the  United  States  or  of  this  State  ;  or  made 
in  consequence  of  any  assignment  of  property  and  estate  for 
the  benefit  of  creditors ;  or  made  by  executors,  administrators, 
or  guardians ;  or  made  pursuant  to  any  law  touching  the  col- 
lection of  any  tax  or  duty,  or  sale  of  any  wrecked  goods  ;  or 
to  any  article  the  product  of  the  agriculture  of  this  State,  in 
its   natural   or  unmanufactured   state ;    or  to  any    species    of 
stock  or  domestic   animals;  or  to  any  articles  of  household 
furniture,  or  farming  utensils   which    have  been  in  use  ;  but 
shall  extend  only  to  such  articles  of  goods,  wares,  and  mer- 
chandise as  are  the  ordinary  subject  of  trafllc  and  sale  by  mer- 
chants and  traders. 
Fees  not  over      7.  The  auctioneers  shall  be  entitled  to  such  compensation 
One''7'erceirt!  as  may  be  agreed  upon,  not  exceeding  two  and  a  half  per  cent. 
to  be  paiil  by  on  the  amouut  of  sales  ;  and  the  auctioneers  of  incorporated 
Im'to'tbe™'    towns  shall  retain  and  pay  one  per  cent,  of  the  gross  amount 
town.— I!.  S.  c.  of  sales  to  the  commissioners  of  their  respective  towns. 
9,  s.  7, 11. 


Slct.  1.    3  Hawks,  234. 


Chap.  11]  bail. 


105 


CHAPTEE    11. 


BAIL. 


Section 


Skctiox 


'■   TeZr/  ""Z  "^^t""'.'";'"  ""^  •"'  P™^^-t-S  officer  to  collect  for. 

returned.      When    sheriff  shajl   be  feiture,  and  prosecute. 


special  bail. 

2.  Bail-bouds  deemed  assigned  toplaintifT. 

3.  Bail  shall  be  special,  and  proceeded 

against  hy  sci.fa. 

4.  Shall  not  plead  non  est  factum  but  on 

affidavit. 

5.  May  surrender  principal  before  final 

judg-ment.  Discharged  thereby  in 
civil  cases:  but  not  in  criminal,  after 
default. 


7.  On  return  that  principal  is  confined, 
how  bail  may  discharge  themselves. 
Debtor  may  be  detained,  where  con- 
fined by  order  of  court,  on  serving 
notice  of  order.  Debtor  surrendered 
after  final  judgment  not  committed, 
but  on  affidavit,  as  on  a  ca.  sa. 

8.  Debtor  confined  for  want  of  bail  may 
give  bail.  Bond  returned  to  next 
court. 

9.  Matters  of  defence  good  for  principal, 
—J     ~-  good  for  baih 

taken.    Consequence  in  civil  cases;      10.    Costs  paid  by  bail  in  certain  cases. 

—  in   nriTninni    nncaa        IF    A^e- — j.^.i.        ..-.       -r.    .,  ..      _ 


6.   Persons  sxirrendered  may  give  other 
bail.     Exception    thereto    may   be 


._.     ,  ,^  '      --■    ------ i'M.i'a  uj  wail  in  utirwun  cases. 

-.n  eumm.a    cases.     If  defendant      11.   Bail  not  discharged  by  amendment 
be  released,  shenflfindictable.    Duty  |  of  process,  unless,  &c 

Of  1;  JT!f7  ""  ^''^  '^'""^l  '^T  ^'■°™  ^"y   °f  *^«  S^Pe^Or  courts  ^^-henandhow 

ot  law,  or  from  the  courts  of  equity  in  cases  where  bail  may  be  baji-bond  taken 
required   or  from  any  of  the  courts  of  pleas  and  quarterages  ""'• 

sions  M^hereby  the  sheriff  or  other  officer  shaU  be  commanded 
to  take  the  body  of  the  defendant  to  answer  to  an  action,  Ml 
or  petition  in  any  of  the  said  courts,  such  sheriff  (or  otlie    offi- 
cer) shall  take  bond  with  sufficient  security  in  double  the  sum 
for  which  such  person  shall  be  held  in  aiTest,  (executors  ad 
administrators  excepted,)  and  shall  return  the  bond  wiSi  tiie 
r  ^k""-!    "\f '?  ^.'f  '''°"^'  °''  "^'^•^^  offic'^r  shall  fail  to  take  ^^^'en  sheriff 
taken  n^i"'         Y^   '"^""'^  ^'  ^'"^"^  insufficient  on  exception  S'^Wc' 
he    .17       u     If  ^'f  '.r^  ^"'■™'  ^°  ^^hich  such  process  shall  ^o  '•  i 
be  leturnable,  the  sherffi  or  other  officer,  having  due  notice 
hereof   .hall   be  deemed  and  stand  as  special  bail,  and  the 

2.    Upon  the  return  of  bail-bonds  into  court,  thev  shaU  be  Kaii-^onds 
deemed,    without  any  indorsement  to  that  efi'ect    to   he  ^^  ^■'""f."",  ■ 
signed  to  the  plaintiff  therein  named.  '  '  ''"  ^^^^t'T 

d.    Bail  in  civil  cases  taken  according  to  the  directions  ofiSif-h-,iM 
his  chapter,  shall  be  deemed  special  ball,  and  as     uc l^^SbL 'pecitrn!i° 
out  elf  \''  recovery  of  the  plaintiff:  but  he  shall  not  sue  J^'Xft  . 
out  execution  against  the  bail,  until  a  scire  facias  shall  h5  e-'^-R-  "^-  - 

the'XS;r",'°  '•'"  .'"'=  "^^^  ^'^'^"  af(er  judgment  f;:^:Vi;tl^^^"- 
tne  plaintiff  ,n  such  scire  facias,  execution  may  issue  aoainst 

Pvpr.nt;!l  ?/   ''"^  '(^ire  facias  against  bail   shall  be   returned  •'^•■■■■ii  not  plead 
executtd,  they  may  appear  and  plead  as  in   other  cases-  but ,"'";  "'-Sf"', 

uVttreo/h"   'V"fr^  '''■"''   "°^'   "^^  '-eceived.unles;  Z-uT^X 
truth  thereof  be  verified  by  affidavit  filed  with  the  plea.  ^-  '■ 


106  BAIL.  [Chap.  11. 

May  nrrest  and      5_    The  bail   shall  have  liberty,  at  any  time  before  execu- 

diTbtfore"""  tion   awarded   against    him,  to   surrender  to   the   court  from 

filial  judgment,  which  the  process  issued,  or  to  the  sherift' having  such  process 

to  return,  during  the  session,  or  in  the  recess  of  such  court, 

the  principal,  in  discharge  of  himself;  and  such  bail  shall,  at 

any  time  before  such  execution  awarded,  have  full  power  and 

authority  to  arrest  the  body  of  his  principal,  and  secure  him, 

until  he   shall  have  an   opportunity  to  surrender   him  to  the 

sheritf  or  court  as  aforesaid ;  and  the  sherift'  is  hereby  required 

to  receive  such  surrender,  and  hold  the  body  of  the  defendant 

in  custody,  as  if  bail   had  never  been  given  :  Provided,  liow- 

Discharged       ever,  that,  in  criminal  proceedings,  the  surrender  by  the  bail, 

"^but'nol  after  the  recognizance  forfeited,  shall  not  have  the  etVect  to 

in  criminal.  —  discharge  the  bail,  but  the  forfeiture   may  be   remitted  in  the 

— 1848,  c"'r.  *  manner  provided  for. 

Persons sunen-      6.    Any  person  surrendered   in  the  manner  specified  in  the 
otherS^'"' foregoing  section,  shall  have  liberty,  at  any  time,  before  final 
Exception        judgment  against  him,  to  give  bail ;  and  in  case  of  such  surren- 
tokerTonst  der,  the  sheriif  shall  take  the  bail-bond  or  recognizance  to  the 
quence  in  civil  succeeding  court ;  and   in  case   the   sheriff'  shall  release  such 
Sna/'cases.  person  without  bail,  or  the  bail  returned  be  held  insufficient. 
If  defendant  be  on  exception  taken   the   same  term  to  which   such  bail-bond 
[ndlctabif''"'^  shall  be  returned,  and  allowed  by  the  court,  the  sherift',  having 
Duty  of  prose-  d^ig  notice  thereof,  shall  be  deemed  and  taken,  in  civil  cases, 
cStlfdt!"  as  special  bail ;  and,  in  criminal  cases,  the  sheriff'  shall  forfeit 
ure,  and  prose- to  the  State  the  sum  of  one  hundred  dollars,  to  be  recovered 
im'."!^'^''''  on  motion  in  like  manner  as  forfeitures  for  not  returning  pro- 
cess, and  be  subject  to  be  indicted  for  misdemeanor  in  office  ; 
and  it  shall  be  the  duty  of  the  prosecuting  oflicer  to  collect 
the  forfeiture ;  and,  in  case  of  a  release,  the  sheriff'  shall  be 
liable  for  an  escape,  and  prosecuted  as  provided  for  in  sections 
thirty-five  and  thirty-six  of  chapter  thirty-four,  entitled  "  Crimes 
and  Punishments." 
On  return  that      7.    When  the  sheriff'  shall  return  upon  a  scire  facias,  in  a 
confined'  how    civil  case,  that  the  principal  is   imprisoned  by  virtue  of  any 
bail  may  dis-     proccss,  civil  or  criminal,  and  he  shall  be  then  actually  con- 
stwef? 'Debtor  iined  in   prison,  this   shall,  if  then   pleaded   by   the   bail,  be 
maybede-       deemed  a  surrender  of  the  principal  and  discharge  of  the  bail. 
fi'fined'by'or-  And  the  couvt,  on  motion  of  the  plaintiff',  shall  order  that  the 
der  of  court,  on  debtor  be  detained  in  custody  where  he  shall  be  a  prisoner, 
TforfKcbt-  until  the  plaintift''s  judgment  and  costs  of  scire  facias  shall  be 
or  surrendered  paid,  or  he  be  otherwise  discharged  according  to  law ;  a  copy 
jud'montnot    of  which  order  being  served  on  the  keeper  of  the  prison  where 
committed  but  the  debtor  may  be  confined,  before  his  releasemcnt,  shall  be 
afinif  ir"    sufficient  authority  for  him  to  detain  the  prisoner  till  such  or- 
der be  complied  with  :  Provided,  always,  that  no  debtor,  after 
final  judgment  against  him,  if  surrendered  in   the  manner  al- 
lowed by  this  chapter,  shall  be  committed  to  the  custody  of 
the  sheriff",  at  the  instance  of  the   plaintifT,  unless  the  plaintiff' 
shall  make  such  affidavit  as  wouhl  entitle  him  to  issue  a  capias 
ad  satisfaciendum. 


Chap.  12.]  bastard  children.  207 

a    If  any  person  for  want  of  bail,  shall  be  lawfully  com- ^^''I'tm- cm,- 
mitted  tojail   at  any  time  before  final  judgment,  the  sheriff,  or  Sr^'il  mr" 
other  officer  havmg  hmi  in   custody,  may  take  bail  and  dis-  "-'ve Z™-^ 
charge  him  ;  and  the  bail-bond  shall  be  regarded,  in  every  re-  f""''  ''"""""'"^ 
spect,  as  other  bail-bonds,  and  shall   be  ret'urned  and  su"d  on  """■ 

in  like  manner ;  and  the  officer  taking  it  shall  make  special 
re  urn  thereof,  with  the  bond  at  the  tirst  court  which  is  held 
atter  it  is  taken. 

9     Every  matter  which   would  entitle  the   principal  to  be  Matters  of  de- 
discharged  from  arrest,  may  be  pleaded  by  the  bail  in  exonera-  f™«^.sood  for 

tion  of  his  liabi  ity.  cAuneia    principal,  good 

H'    J^.f  f^"'  ^  *f""«  /«"■««  shall  issue  against  any  person,  Costs  paid  by 
as  the  bail  of  any  other  person,  and  the  bail,  at  or  before  the  ^""^  '"  T"'"'" 
term  of  the  court  at  which  such   bail  is  bound  to  appear,  or  Tio.'-s''-   '• 
ought  to  plead,  shall  not  be  discharged  from  his  liability  as 
bail  by  the  death  or  surrender  of  his  principal,  or  otherwise  ; 
in  that  case  the  bail  shall  be  liable  for  all   costs  which  may 
accrue  on  said  scire  facias,  notwithstanding  the  bail  may  be 
afterwards  discharged  by  the  death  or  surrender  of  the  princi- 
pal, or  otherwise.  ^ 

11.    No  amendment  of  process  shaU   discharge  the  bail  of  B .ii  not  dis- 
the  party  arrested  thereon,  unless  the  amendment  be  to  enlar-e  '^''"'^f  ''^^   , 
the  sum  demanded  beyond  the  sum  expressed  in  the  bail"bond  v^Z:£, 

&e. 

Sect.  5.   Surrender,  3  Dev.  431,  lb.  392,  1  lb.  91,  2  lb.  254. 


CHAPTER    12. 

BASTARD  CHILDREN. 


^'^o-'^-'o^  1  Sectio.x 

1.  A  single  woman  big  with  cliild,  &c., 

refusing  to  declare  the  father,  to  pay 
a  fine,  and  give  security,  &c.  If  she 
declare  the  father,  he  shall  give 
security  to  perform  the  orders  of 
court. 

2.  Persons  charged  bound  over,  though 

child  not  born. 

3.  Process  to  issue  against  the  person 

charged  and  failing  to  appear. 

4.  Issue  made  to  try  paternity.    If  found 

against  him,  or  there  be  no  issue, 


he  shall  maintain  the  child  and  pay 
costs. 

5.  Appeal  by  State. 

6.  Examination  to  be  within  three  \-ear3 
after  birth  of  child. 

7.  Execution  may  issue  for  maintenance 
of  bastard. 

8.  Illegitimate  children  may  be  legiti- 
mated by  county  or  superior  court. 
Decree  recorded. 

9.  Effects  of  such  legitimation.  Legiti- 
mate in  all  respects,  as  to  the  father. 


_    1.    Any  justice  of  the  peace,  upon  his  own  knowledo-o,  or  Asin-io  w 
information  made  to  him,  that  any  single  woman  within  his  '^12^^ 


with 


108  BASTARD    CHILDREN.  [ChAP.    12. 

fusing  to  (le-  county  is  big  with  child,  or  delivered  of  a  child  or  children, 
Clare  the  toher,  ^  cause  her  to  be  brousfht  before  him,  (or  any  other  justice 
and  give  seou-  of  the  county,)  to  be  examuied  upon  oath  respectuig  the 
rity,  &c.  father ;  and  if  she  shall  refuse  to  declare  the  father,  she  shall 

pay  a  fine  of  five  dollars,  and  give  a  bond  payable  to  the  State 
of  North  Carolina,  with  sufficient  security,  to  keep  such  child 
or  children  from  being  chargeable  to  the  county,  otherwise  she 
shall  be  committed  to  prison  until  she  shall  declare  the  same, 
or   pay  the  fine  aforesaid  and   give  such  bond;  but  if  such 
If  she  declare    Woman  shall,  upon  oath,  accuse  any  man  of  behig  the  father 
the  father,'he    of  such  child  or  children,  he  shall  enter  into  recognizance,  with 
curit/toVer-    Sufficient  security,  before  the  said  justice,  for  his  appearance 
form  the  orders  at  the  next  term  of  the  county  court,  to  stand  to,  abide  by, 
of  is^s!'!-**'  and  perform  whatever  order  the  court  may  make  for  the  main- 
18507 c' 14.       tenance  of  said  bastard  child  or  children,  and  for  the  indemni- 
fication of  the  county  against  any  charges  for  such  mainte- 
nance, otherwise  he  shall  be  committed  to  prison  until  he  enters 
into  such  recognizance. 
Persons  oharg-      2.    The  justice  aforesaid,  at  his  discretion,  may  bind  to  the 
thou°irchiir'^'  "*^^*  county  court  him  that  is  charged  as  afol-esaid  to  have  be- 
norifora*!— R.    gotten  a  bastard  child,  which  shall  not  then  be  born,  and  the 
^'isoo^'c^'ii"  county  court  may  continue  said  person  upon  security  until  the 
"  '"'         woman  shall  be  deUvered,  that  he  may  be  forthcoming  when 
the  child  is  born. 
Process  to  issue      3.    Whenever  a  justice,  as  aforesaid,  shall  bind  any  person, 
LTcifarged''"  charged  with  being  the  father  of  a  bastard  child,  to  the  next 
and  failing  to    county  court,  as  above  prescribed,  and  he  shall   not  appear 
cfir's'.'i.'^'  ^'  agreeable  to   his  recognizance,  or  whenever  a  woman  shall 
swear  a  child  to  a  man  in  manner  aforesaid,  and  he  shall  ab- 
scond, or  so  conceal  himself  that  the  process  of  the  justice 
cannot  be  served  on  him,  the  county  court,  on  the  return  of 
the  recognizance  or  other  proceedings  from  the  justice,  may 
order  their  clerk  to  issue  a  capias  or  an  attachment,  (at  the 
discretion    of  the    court,)   to    any  county  within    the    State, 
against  the   person   so   charged;    and  the   same    proceedings 
shall  be  had  thereon  as  in  other  cases  of  capias   or   attach- 
ment. 
Issue  made  to        4_    Whenever  any  man,  in  the  manner  aforesaid,  shall  be 
try  paternity,    j^^pj^ggj  (^y  ^  single  woman  of  being  the  father  of  her  bastard 
child  or  children,  upon  the  return  to  court  of  the  recognizance, 
capias,  or  attachment,  as  the  case  may  be,  he  shall  be  entitled 
to  have  an  issue  made  up  to  try  whether  he  be  the  father  of 
snch  child  or  children ;  upon  the  trial  of  which,  the  examina- 
tion of  th(>  woman,  as  aforesaid,  taken  and  returned  to  court, 
shall  be  presumptive  evidence  against  the  person  accused,  sub- 
ject to  be  rebutted  by  other  testimony  wiiich  may   be  intro- 
If  found  against  duccd  by  the  defendant;  and  if  the  jury  shall  find  that  the 
him,  or  there     person  accused  is  the  father  of  such  child  or  children,  he  shall 
slmiTnittoain  stand  charged  with  the  maintenance  tiiereof,  as  the  court  may 
the  child  and    order,  and  shall  give  bond,  with  sufficient  security,  payable  to 
s'o.Ts''*^-  the  State  of  North  Carolina,  to  perform  said  order,  and  to  in- 

1850,  c.  16. 


Chap.  12.]  bastard  children.  109 

demnify  the  county  where  such  child  or  children  shall  be  born 
Irom  charges  for  his  or  their  maintenance,  and  may  be  com- 
mitted to  prison  until  he  find  sureties  for  the  same,  and  shall 
be  liable  for  the  costs  of  the  issue :  and  the  like  order  may  be 
made  by  the  court,  and  such  security  required  of  any  man 
who  stands  charged  as  above,  and  does  not  apply  for  such 
issue  to  be  made  up;  and  in  default  of  security,  he  may  be 
committed  to  prison  as  above  prescribed. 

5.  In  the  trial  of  all  such  issues,  the  county  solicitor  may  Appeal  by 
appeal  to  the  superior  court  whenever  he  shall  think  that  ius-  state._R.  s.  o. 
tice  has  not  been  obtained.  ^       ^^'  "•  ^• 

6.  All  examinations  upon  oath  to  charge  any  man  with  Ezamin'ntobe 
being  the  father  of  a  bastard  child,  shall  be  taken  within  three  *'"""  9''^ 
years  next  after  the  bii-th  of  the  child,  and  not  after.  SofSlnd. 

7.  When  thecourt  shall  charge  the  reputed  father  of  a  bas-  7^  ^-  "■  ^^' 
tard  child  with  Its  maintenance,  and  the  father  shall  neglect  Execution  may 
to  pay  the  same,  then  the  county  court,  notice  being  served  on  jr'/"'"""'   . 
the  defendant  at  least  ten  days  before  the  sitting  of  court,  o"  =lr-K?' 
such  notice  being  returned  by  the  sheriff  that  the  defendant  is  ^-  "•  ^''  ^-  ^• 
not  to  be  found,  may  order  an   execution  against  the  goods, 

chattels  lands,  and  tenements  of  the  father,  for  such  sum  as 
the  court  shall  adjudge  sufficient  for  the  maintenance  of  the 
bastard  child  or  children:  Provided,  that  the  party  aggrieved 
by  such  non-payment  shall  apply  for  the  same. 

8.  The  putative   father  of  any  illegitimate  child,  who  was  Illegitimate 
unmarried  at  the  time   of  its  birth,  may  apply  by  petition  in  t^"\'^'^'^  ""^^ 
writing  to  the  county  or  superior  court  o^f  the'  c'ou^nt'y  ^^  wMch  b^  c.?— A" 
the  father  may  reside,   praying  that  such    child  may  be  de-  '=°"'- 
Glared   egitimate;  and  if  it  shaU  appear  that  the  petitioner  is  Decree  record- 
reputed  the  father  of  the  child,  the  court  may  thereupon  de-  f-^'  «■  "=• 
Clare  and  pronounce  the  child  legitimated;  and  the  clerk  shall  l:t  '■"''''' 
record  the  decree. 

9.  The  effect  of  such  legitimation  shall  extend  no  further  Effect,  of  sucU 
tlian  to   impose  upon   the  father  all  the   obligations   which ''^sitimation. 
lathers  owe  to  their  lawful  children,  and  to  enable  the  child  to 

mhent  from  the  father  only,  his  real  estate,  and  also  to  entitle 
such  child  to  the  personal  estate  of  his  father,  in  the  same 

Sdrth^n.!?'    '"?     '".'^™  \"  '"^T^"^  ^^'^'^'"^'^  ;    ^"d  in  case  Legitimate  in 

^il  n  ,  intestacy,  the  real  and  personal  estate  of  such  ^H '-espects  as 
chid  shall  be  transmitted  and  distributed  according  to  ihe'^TH^tJ 
staute  of  descents  and  distribution,  among  those  who  would 

ful  wedlock  ""''*  °^  ^""'  "'  '^''  ^'  ^'""^  ^"""  ^"^'^  "^  1^^- 

bECT.  8.   1  Ire.  Eq.  28,  i  Dev.  Ho 

10 


110 


BILLS,   B0^'D3,   ETC. 


[Chap.  13. 


CHAPTER   13. 

BILLS,  BONDS,  AiSID  PROMISSORY  NOTES. 


Section 

1.  Bills,  bonds,  and  notes,  for  money,  ne- 

gotiable as  inland  bills  of  exchange. 
Lidorsee  may  sue  in  case;  or  in  debt 
■where  obligee  may  thus  sue. 

2.  Orders  in -n'ritingi  drawer  or  acceptor 

liable  thereon.  Protest  for  non-ac- 
ceptance, and  notice  necessary,  be- 
fore suit  against  drawer. 

3.  Days  of  grace  on  bills,  &c.,  except 

those  payable  on  demand. 

4.  Interest  on  bills,  &c. ;  when  to  accrue. 

5.  Bills,  &c.,  payable  on  demand,  to  bear 

interest. 


Sectios 

6.  Also  contracts  for  delivery  of  specific 

articles. 

7.  Also   bills    of  exchange    from    time 

when  payable. 

8.  Damages  on    protested  bills  of   ex- 

change. 

9.  Protest  of  notary,  &o.,  evidence  of 

demand,  &c. 

10.  Indorsers  of  negotiable  securities  lia- 

ble as  sureties. 

11.  Bonds  payable  to  clerk,  &c.,  for  bene- 

fit  of  suitors,   suable    in    name   of 
State. 


Bills,  bonds, 
and  notes  for 
money,  nego- 
tiable as  inland 
bills  of  ex- 
change. 


Indorsee  may 
sue  in  case. 


Or  in  debt 
where  tlic  obli 
gee  may  thus 
sue. — K.  S.  0. 
18,  s.  1-3. 


1.  All  notes  signed  by  any  person,  body  corporate,  or  by 
the  servant  or  agent  of  any  corporation,  banicer,  merchant,  or 
trader,  who  is,  or  shall  be  usually  intrusted  to  sign  such 
promissory  notes  for  them,  whereby  such  person,  body  cor- 
porate, or  the  servant  or  agent  of  any  corporation,  banker, 
merchant,  or  trader,  shaU  promise  to  pay  any  person,  body 
corporate,  or  the  servant  or  agent  of  any  corporation,  banker, 
merchant,  or  trader,  the  money  mentioned  in  such  note,  shall 
be  construed  to  be,  by  virtue  thereof,  due  and  payable  to  such 
person,  body  corporate,  or  the  servant  or  agent  of  any  corpora- 
tion, banker,  merchant,  or  trader,  to  whoiu  the  same  is  made 
payable ;  and  the  person,  body  corporate,  or  the  servant  or 
agent  of  any  corporation,  banker,  merchant,  or  trader,  to  whom 
such  money  is  payable,  may  maintain  an  action  for  the  same, 
as  they  might  upon  inland  bills  of  exchange ;  and  the  same,  as 
likewise  all  bonds,  bills,  and  notes  for  money,  with  or  without 
seal,  and  expressed,  or  not,  to  be  payable  to  order  and  for 
value  received,  may  be  assignable  over  in  like  manner  as  in- 
land bills  of  exchange  are  by  custom  of  merchants  in  England : 
and  the  person,  body  corporate,  or  the  servant  or  agent  of  any 
corporation,  banker,  merchant,  or  trader,  to  whom  sucli  jM-omis- 
sory  note,  bill,  bond,  or  sealed  note  is  assigned  or  indorsed, 
may  maintain  an  action  on  the  case  against  the  person,  body 
corporate,  or  the  servant  or  agent  of  any  corporation,  banker, 
merchant,  or  trader,  who  shall  have  signed  sucli  promissory 
note,  bond,  bill,  or  sealed  note,  or  any  who  shaU  have  indorsed 
the  same,  as  in  cases  of  inland  bills  of  exchange :  I  ronded, 
always,  that  the  indorsee  op:  assignee  of  any  bill,  bond,  or  note, 
■  under  seal,  may  maintain  an  action  of  debt  on  the  same  in  Ins 
own  name,  as  indorsee  or  assignee,  provided  the  original 
obligee  could  have  maintained  an  action  of  debt  on  the  same 
bill,  bond,  or  note  with  seal. 


Chap.  13.]  bills,  bonds,  etc.  m 


writ- 


2.   When   any  person  by  order  in   writing  signed  by  him,  Or,!er«  m  wr 
shall  direct  the  payment  of  any  sum  of  money  in  the  hands  or  '"S -drawer,. 
possession  of  any  other  person,  to   the  bearer,  or  any  person  Son'  ''^''" 
whatsoever,  the  money  therein  specified  shall,  by  virtue  there- 
of, be  due  and  payable  to  such  person  to  whom  the  same  is 
drawn  payable,  and  may  be  put  in  suit  against  him  who  shall 
draw  the  same,  or  against  the  person  on  whom  the  same  shall 
be  drawn,  after  the   acceptance  thereof  by  him  by  whom  the 
same  shall  be  made  payable,  and  damages  may  be  recovered: 
Provided,  nevcr/Jie/ess,   that  none    shall    commence    any   suit  Protect  for 
agamst  hmi  who  shall  give  such  order  for  the  money  therein  """-"ocept- 
mentioned,  before  the  same  shall  have  been  first  protested  for  notice  tweof 
non-acceptance,  and  notice  given  thereof  to  the  drawer-  and  if  before  suit 
suit  shall  be  brought  on  such  order  before  notice  and  refusal  ^^Ts  t'lT' 
to  pay  as  aforesaid,  the  plaintiff' shall  be  nonsuited.  =•  2- 

3.  All  bills  of  exchange   payable   within  the  State,  at  sight.  Days  of  grace 
or  at  a  future  day  certain,  in  which  there  is  no  express  stipula-  exoemifc 
tion  to  the  contrary,  shall  be  entitled  to  days  of  grace  as  the  iSe  oTde- 
same  are  allowed  by  the  custom  of  merchants  on  foreign  bills  '"'™<l- -  "^s, 
of  exchange  payable  at  the  expiration  of  a  certain  period  after   '  ' 

date  or  sight :  Provided,  that  no  days  of  grace  shall  be  allowed 
on  any  bill  of  exchange,  promissory  note,  or  draft  payable  on 
demand.  "^ 

4.  AH  bonds,  bills,  notes,  bills  of  exchange,  liquidated  and  int'reston bilk, 
settled  accounts,  shall  bear  interest  from  the  time  they  become  to^rZ^'^'u  ^ 
due,  provided  such  liquidated  and  settled  accounts  be  si<rned  c  13  s.4.  ^■^■ 
by  the  debtor,  unless  it  be  specially  expressed  that  interest  is 

not  to  accrue  until  a  time  mentioned  in  the  said  writings  or 
securities.  ^ 

5    All  bills,  bonds,  or   notes   payable    on   demand,  shall  be  Bills,  &c.,  pay- 
held  and  deemed  to  be  due  when  demandable  by  the  creditor  '^^'i" onde- 
and  shall  bear  interest  from  the  time  they  are  demandable,  un-  TnZ%L-n:t 
less  otherwise  expressed.  0. 13,  s.  5. 

6.  All  securities  for  the  payment  or  delivery  of  specific  arti-  Also  contracts 
cles,  shall  bear  interest  as  moneyed  contracts  ;  and  the  articles  t'J!^""^  f 
shall  be  rated  by  the  jury  at  the  time  they  become  due.  "13'  s.T 

,.      cf '"'' °^''-T''n",§'' '^'"''''  ^^'"^^^  ^^  ^'■^^^•i   o"*  indorsed  in  Also  bills  of  ex- 
tne  btate,  and  shall  be  protested,  shall  carry  interest,  not  from  'change  from 
the  date  thereof,  but  from  the  time  of  payment  therein  men- aWe  ^'r"  S''^ 
t'oned.  i3_s.  6. 

8    The  damages  on  such  protested  bills  shall  be  as  follows :  Damages  on 
that  IS  to  say,  where  the  bill  shall  be  drawn  or  indorsed  in  this  P™*<''f^'l  bills 
fetate   upon   any  person  or  corporation   in   any   other    of  the  variourp^fces! 
United  States,  or  in  any  of  the   territories   thereof,  three   per  ^, ''•/„■ '^''•*- 
centum    upon    the   principal   sum;    where   such    bill  shall   be     ''*"■'■'■ 
drawn   or  indorsed  upon   any  person   or   corporation   in  any 
other  place  in  North  America,  (excepting  the  north-west  coast 
ot  America,)  or  in  any  of  the  West  India  or  Bahama  Islands, 
ten  per  cent,  upon  the  principal  sum  ;  where  such  bill  shall  be 
drawn  or  indorsed    upon    any   person   or   corporation    in    the 
island  ot  Madeira,  the  Canaries,  the  Azores,  the  Cape  de  Verd 


112  BaLS,    BONDS,    ETC.  [ChAP.    13. 

Islands,  or  in  any  other  State  or  place  in  Europe  or   South 
America,  fifteen  per  cent,  on  the   principal  sum ;  and  where 
such  bill  shall  be  drawn  or  indorsed  on  any  person  or  corpora- 
tion in  any  other  part  of  the  world,  twenty  per  cent,  on  the 
principal  sum. 
Protest  of  no-        9.  In  all  actions  wherein   it   maybe   necessary  to   prove   a 
tary,^&c.,^evi-  (jgjjj;i,^(^i  upon,  or  notice  to,  the  drawer,  or  indorser  of  a  bill  of 
maiKi,&c.— E.  exchange,  or  promissory  note,  or  other  negotiable  security;  or 
S.  c.  13,  s.  10.    •^yi^gj.g  jt  i^jay  be  necessary  to  prove  a   demand  upon  the  ac- 
ceptor or  drawee  of  a  bill  of  exchange,  in  any  action  against 
the  drawer  or  indorser  thereof,  the  protest  of  a  notary-public. 
Justices  and      or,  for  want  of  a  notary-public,  of  a  justice  of  the  peace,  cleric 
clerks  may  pro-  ^f  ^  court  of  record,  or  clerk  and  master,  setting  forth  that  he 
'         '        made  such  demand,  or  gave  such  notice,  and  the  manner  in 
which  he  did  the  same,  shall  be  prima  facie  evidence  that  such 
demand  was  made,  or  notice  given  in  manner  set  forth  in  the 
protest. 
Indorsersof  10.  Whenever  any  bill,  or  negotiable  bond,  or   promissory 

cufitieUiaWe    ^lotc,  shall  be  indorsed,  such   indorsement,  unless  it  be   othcr- 
as  sureties.—    wise  plainly  expressed  therein,  shall  render  the  indorser  liable 
E.  S.  c.  13,  s.     g^g  surety  to  any  holder  of  such  bill,  bond,  or  promissory  note  ; 
and  no  demand  on  the  maker  shall  be  necessary  previous  to  an 
action  against  the  indorser:  Provided,  that  nothing  herein  con- 
tained shall  in  any  respect  apply  to  bills  of  exchange,  inland  or 
foreign. 
Bonds  payable       H.  Bonds  and  other  obligations  taken  in  the  course  of  any 
for^benefiVot'    proceeding  in  law  or  equity,  under  the  direction  of  the  court, 
suitors,  suable   and  payable  to  any  clerk,  commissioner,  or  officer  of  the  court, 
SiateT""         foi"  t'le  benefit  of  the  suitors  in  the  cause,  or  others  having  an 
interest  in  such  obligation,  may  be  put  in  suit  in  the  name  of 
the  State. 


Sect.  1.  H7ia(  vegoliMe,  2  D.  &  R.  338,  4  Dev.  122.  Whni  not :  where  no  proniise 
iopaij,  2  D.  &  R.  239;  /or  ?n(iney  ami  (itlicr  Ihinr/s,  1  Jones,  357 ;  for  bank-stock,  2  I).  & 
B.  513;  pnynitnt  contingent^  3  Hawks,  458.  Payee:  bond  to  A.  or  bearer,  11  Ire.  409; 
7  lb.  2(j2;  bus.  138;  blank  for  name  of,  2  Dev.  473.  I^7^c»  due,  11  Ire.  564,  Bus.  422, 
lb.  405.  Imhirfuiivnl,  V.n^.  423;  out  of  the  Stale,  6  Ire.  107;  in  blank,  1  Ire.  219,  4 
It).  266.  A'.renih.i-  wiy  imhirse,  1  Mur.  133.  Ritihlx  of  huhrsers  inter  se,  5  Ire.  397,  4 
D  &  R.  3Ui;,  li  llawk.^,  2;>0,  3  Dev.  228.  UUjhIi  af  imtmsee,  2  1).  &  H.  283.  Kote  pnrj- 
able  at  parlhnhir  phne,  2  Junes,  23,  13  (re.  76.  J-'ailure  of  consideration,  2  D.  &  B.  338. 
Sale  inthiiul  iiidoisi-ment,  12  Ire.  324.     Suit  by  assir/net,  11  Ire.  227. 

Kkct.  2.  l.iahilily  of  acceptor,  4  Dev.  367.  Notice  of  protest  to  drawer,  1  Ire.  262; 
on  inland  bill,  2  Ire.  134;  waived,  3  Ire.  347;  where  to'be  saU,  Rus.  371,  0  Ire.  CIC,  3 
Hawks,  453;  to  fraudulent  indorser,  2  Dev.  Kq.  IH;  form  of,  2  Hawks,  OUU;  bow 2>roved, 
2  Dev.  67. 

Sect.  3.    ISmids :  dmjs  of  i/race  on,  3  Hawks,  10,  lb.  405. 

Skct.  5.    11  Ire.  664. 

Sect.  8.   5  Ire.  551. 

Sect.  10.   Hire.  62;  2  Jones,  29. 


Chap.  15.] 


BOOK    DEBTS. 


113 


CHAPTER    14. 


BOATS  AND   CANOES. 


Section 
1.  Trespass  on  boats,  &c.    Penalty  and 
damages. 


Section 

2.  Slaves  guUty,  to  be  whipped. 

3.  Penalty  not  to  extend  to  certain  cases. 


1.  Any  person  who  shall  take  away  from  any  landing  or  Trespass  on 
other  place  where  the  same  shall  be,  or  shall  loose,  unmoon  or  l'"'\^''-  , 
turn  adrift  from  the  same,  any  boat,  canoe,  or  pettiamia,  be- daZgL'^iR. 
longmg  to  or  in  the  lawful  custody  of  any  person-  or  any  ^- '' ^*' '•  ^'2- 
person  who  shall   direct  the   same    to   be   done   without  the 
consent  of  the  owner,    or  the  person  having  the  custody  or 
possession  of  such  boat,  canoe,  or  pettiagua,  shall  forfeit  and 
pay  to  such  owner,  or  person  haying  the  custody  and  posses- 
sion  as   aforesaid,  the   sum   of  two  dollars;   and  the  owner 
may  also  have  his  action  for  such  injury. 

2.  If  any  slave  s^hall  offend  against  the  provisions  of  the  slaves  gnilty 
above  section,  and  be  thereof  convicted,  he  shall  be  whipped  '»  b«  "^ipped. 
not  exceeding  thirty-nine  lashes.  -f  ^-  "■  i*. 

3.  The  penalties  aforesaid  shaU  not  extend  to  any  person  Pettity  not  to 
Who  shall  press  any  boat,  canoe,  or  pettiagua  by  public  f"-'"^"'*  '"  '"i- 
authority;  nor  to  any  slave  taking  the  same  Ly  ord^er  of  his  s'l'^.  l^:tl'- 
master  or  overseer.  ^ 


CHAPTEK    15. 


BOOK  DEBTS. 


Section 

have  not  elapsed   before   death  of 
creditor. 

3.  Copies  of  accounts  evidence,  unless 

notice  to  produce  original. 

4.  Books   admissible  in  all  rfourts,  and 

contestable  as  other  evidence. 


Section 

1.  In  what  actions,  for  what  sums,  and 

within  what  times,  book  accounts 
may  he  proved  by  plaintiff  or  de- 
fendant. 

2.  Or  by  executors  and  administrators. 

How  proved  by  them.  Time  en- 
larged for  such  proof,  if  two  years 

1.   When  any  person  shall  bring  his  suit  in  debt,  or  in  case,  In  whatac- 
upon  a  contract  or  any  person  shall  plead,  or  give  notice  of,  a  "Z'  n"'","''-'" 
set-off,  for  goods,  wares,   and  merchandise  by  him  sold  and  wi"w'n  what 
aeiivered,   or  for  work   done  and  performed,  he  shall  file  his  •'"^''  ^°"^  ",<^- 
account  with  his  declaration,  or  with  his  plea  or  notice  of  set!  ^Xed  i'^  '' 
oH,  and  if  upon  the  trial  of  the  issue,  or  executing  a  writ  of  Fij^'f  "'i/'S- 
inquiry  of  damages  in  such  action,  he  shall  declar?  upon  hisfits^M'- 
corporal   oath,  that  the   matter  in  dispute  is  a  book  account, 
10* 


114  '  BOOK   DEBTS.  [ClIAP.    15. 

and  that  he  hath  no  means  to  prove  the  delivery  of  any  of  the 
articles  which  he  then  shall  propose  to  prove  by  himself,  but 
by  this  book;  in  that  case,  such  book  may  be  given  in  evi- 
dence, if  he  shall  make  out  by  his  own  oath,  tliat  it  doth  con- 
tain a  true  account  of  all  the  dealings,  or  the  last  settlement 
of  accounts,  between  them,  and  that  all  the  articles  therein 
contained  and  by  him  so  proved,  were  bona  Jide  delivered,  and 
that   he  hath  given  the  opposing  party  all  just  credits;  and 
such  book  and  oath  shall  be  received  as  evidence  for  the  sev- 
eral articles  so  proved  to  be  delivered  within  two  years  next 
before  the   commencement  of  the  suit,  but  not  for  any  article 
of  a  longer  standing,  nor  for  any  greater  amount  than  sixty 
dollars. 
Or  by  execii-      2.  In  suits  where  executors  and  adminish-ators  are  parties, 
istrato^!'''""""  such  book  account  for  all  articles  delivered  within  two  years 
previous   to  the  death  of  the  deceased,  may  be  proved  under 
the  like  circumstances,  rules,  and  conditions ;  and  in  that  case. 
How  proved  by  the  executor  or  administrator  may  prove  by  himself,  that  he 
them.  found  the   account  so   stated  on  the  books  of  the  deceased ; 

that  there  are  no  witnesses,  to  his  knowledge,  capable  of  proving 
the  delivery  of  the  articles  which  he  shall  propose  to  prove  by 
said  book,  and  that  he  believes  the  same  to  be  just,  and  doth 
not  know  of  any  other  or  further  credit  to  be  given  than  what 
Time  enlarged  is  therein  mentioned :  Provided,  hoivever,  That  if  two  years 
for  such ^proo^  shall  not  have  elapsed  previous  to  the  death  of  the  deceased, 
not  e^iap?ed'be-  the  executor  or  administrator  may  prove  the  said  book  account, 
creditor-R'^S  '^  ^'^^   ^'^'*  ^^^^^  ^'^  Commenced  within  three  years  from  the 
f.%5,T2.   '   ■  delivery  of  the  articles  :   And  provided,  further,  That  whenever 
by  the  aforesaid  proviso  the  time  of  proving  a  book  account 
in   manner  aforesaid  is  enlarged  as  to  one  party,  to  the  same 
extent  shall  be  enlarged  the  time  as  to  the  other  party. 
Copies  of  ac-      3.  A  copy  from  the  book  of   accounts  proved  in  manner 
dencT  unless     above  directed,  may  be  given  in  evidence  in  any  such  action 
notice  to  pro-    or  set-ofl'  as  aforesaid,  and  shall  be  as  available  as  if   such 
-R   s'^c'^is  book  had  been  produced,  unless  the  party  opposing  such  proof 
s.  3.'    '    '     '  shall  give  notice  to  the  adverse  party  or  his  attorney,  at  the 
joining  of  the  issue,  or  twenty  days  before  the  trial,  that  he 
will  require  the  book  to  be  produced  at  the  trial ;  and  in  that 
case  no  such  copy  shall  be  admitted  as  evidence. 
Boolss    admis-      4.  The  evidence  made  admissible  by  this  chai)ter  in  suits  at 
cl'llrtl^aml       law,  is  hereby   declared  to  be  admissible  to  jirove  the  same 
coiitestabie  as   matters  in  any  court  or  cause ;    Provided,  always.  That  the 
-r!"  s"c!"i5',  same  may  be  confronted  and  contested  as  other  evidence. 


Sect.  1.  Plf.  must  prove  delivery,  11  Ire.  4ir>.    Price,  3  Ire.  77.    All  just  crediti,  13 
Ire.  4(il.   Amount  over%ti<iredu<:e<lby  crediti,  llxa.WO. 
Sect.  2.   Uev.  317. 
Sect.  8.   3  Ire.  243. 
Sect.  4.   Mur.  414. 


Chap.  17.]  cattle,  and  other  stock. 


115 


CHAPTER  16. 


BURNING  WOODS  AND  HUNTING. 


Section 

1.  No  person  to  fire  woods,  except  his 

own.    Notice  thereof  to  be  given. 

2.  Penalty.     Misdemeanor. 

3.  Penalty  for  liilling  wild  deer  between 


Section 

twentieth  of  Febrnary  and  fifteenth 
of  August. 
4.  Penalty  for  hunting  on  land  of  an- 
other after  advertisement  forbidding. 


1.  No  person  shall  set  fire  to  any  woods,  except  it  be  his  No  pei-son  to 
own  property ;  nor  in  that  case,  without  first  giving  notice  in  ^'^^  '^y°'^^'  ^^- 
writing  to  all  persons  owning  lands   adjoining  to  the  wood  Xcftice'theTeof 
lands  intended  to  be  fired,  at  least  two  days  before  the  time  of  l"  I"  S'^g"-- 
firing  such  woods,  and  also  taking  effectual  care  to  e.xtinguish    '   '  "'    '^'  ' 
such  fire  before  it  shall  reach  any  vacant  or  patented  lands 

near  to  or  adjoining  the  lands  so  fired. 

2.  Every  person  wilfully  offending  against  the  provisions  of  Penalty. 
the  preceding  section  shall,  for  every  such  offence,  forfeit  and 

pay  to  any  person  who  will  sue  for  the  same,  fifty  dollars,  and  Misdemeanor. 
be  liable  to  any  one  injured  in  an  action  on  the  case,  and  shall  ~f  ®'°' "' 
moreover  be  deemed  guilty  of  a  misdemeanor. 

3.  If  any  person  shall  kill  or  destroy  any  deer  running  wild  Penalty  for 
in  the  woods  or  unfenced  grounds,  unless  on  his  own  lands,  dm"fetween 
by  gun  or  otherwise,  between  the  twentieth  day  of  February  20th  Feb.  and 
and  the  fifteenth  day  of  August  next  succeeding,  he  shall  for-  r  g  tlsl  1 

feit  and  pay  for  every  offence,  four  dollars,  to  any  person  who 

will  sue  for  the  same;  and  in  case  the  offender  be  a  slave,  his 

owner  shall  pay  a  like  penalty. 

4.  If  any  person  shall  hunt,  with  gun  or  dogs,  on  the  lands  Penalty  for 
of  another,  without  leave  obtained  from  the  owner,  he  shall  l!,nd  o/w,ther 
for  every  offence  forfeit  and  pay  ten  dollars  to  the  party  aw- -ifter  adVertise- 
grieved:  Provided,  That  noj  such  recovery  shall  be  had,  unless  d]n"*i[-K'"s 
the  owner  of  the  land,  by  advertisement  posted  up  in  two  or  <=■  ^%  M-.' 
more  public  places,  have  forbidden  the  person  so  huntincr,  by 

name,  or  all  persons  generally,  to  hunt  on  his  land.  ° 


Sect.  1.  N.  C.  T.  R.  263;  1  Hawks,  60. 


CHAPTER    17. 

CATTLE,   AND    OTHER   STOCK. 


Section 


1.  Owner  of  stock  to  have  a  mark  or 

brand:  to  be  recorded. 

2.  Penalty  fur  killing  in  the  woods  and 


Section 

not  showing  head,  ears,  and  hide,  in 
two  days. 
3.  Cattle  nut  to  be  driven  into  this,  from 


116 


CATTLE,   AND    OTHER   STOCK.  [ChAP.    17. 


Section 

any  other  State,  between  first  of 
April  and  last  day  of  November. 
Penalty  five  dollars.  Non-residents 
within  five  miles  of,  or  owning  land 
in,  the  State,  exempt  from  penalty, 
when. 

4.  Cattle  not  to  be  driven  from  certain 
places  into  the  highlands,  when, 
&c. 

6.  When  driven  from  one  part  of  the 
State  through  another,  must  be  cer- 
tified to  be    healthv,   and  whence 


Section 

driven,  &c.  Jlisdemeanor  for  jus- 
tice to  grant  certificate,  without  affi- 
davit. 

6.  Stone-horsos    and    stone-mules    two 

years  old  not  to  go  at  large ;  penalty 
twenty  dollars. 

7.  Remedy,  before  justice,  for  stock  killed 

on  railroads  by  engines,  &c. 

8.  For  sheep  injured  by  dogs. 

9.  Ignorance,  of  dogs'  vicious  habits,  no 

defence. 


Owner  of  stock      \_  EvERY  person  who  hath  any  horses,  cattle,  hogs,  or  sheep, 

or  brand:  to  be  shall  have  an  ear-mark  or  brand  different  from  the  ear-mark 

recorded.  — R.  and  brand  of  all  other  per.?ons,  which  he  shall  record  with  the 

'  '   '     clerk  of  the  county  court  of  the  county  where  his  horses,  cattle, 

hogs,  or  sheep  are ;  and  he   shall  brand  all  horses    eighteen 

months  old  and  upwards  with  the   said  brand,  and  ear-mark 

all  his  hogs  and  sheep  six  months  old  and  upwards  with  the 

said  ear-mark ;  and  ear-mark  or   brand  all  his    cattle    twelve 

months    old    and  upwards.     And  if  any  dispute   shall  arise 

about  any  ear-mark  or  brand,  the  same  shall  be  decided  by  the 

record  thereof. 

Penalty  for  2.  If  any  person  shall  kill  any  neat  cattle,  sheep,  or  hogs  in 

w'oo'if  and\iot  the  woods,  he  shall,  within  two  days,  show  the  head  and  ears 

showing  head,  of  such  hog  or  sheep,  and  the  hide,  with  the  ears  on,  of  such 

in  jtwo  days.— neat  beast  or  cattle,  to  the  next  magistrate,  or  to  two  sub- 

R.  S.  c.  17',  s.  2.  stantial  freeholders,  under  penalty  of  ten  dollars,  to  any  person 

who  will  sue  for  the  same. 
Cattienottobe  'S,  If  any  persoii  who  shall  be  a  resident  citizen  of  another 
from  aiy  othei-  State  or  one  of  the  territories,  shall  drive  or  cause  to  be  driven 
State,  between  into  any  county  in  this  State,  any  horses,  mules,  hogs,  cattle, 
Jisttiay  of'so-  or  shccp,  between  the  first  day  of  April  and  the  last  day  of 
November,  and  suffer  them  to  run  at  large  in  any  marsh  or 
forest  range  in  this  State,  he  shall  forfeit  five  dollars,  for  each 
head  so  permitted  to  run  at  large,  to  any  one  who  may  sue  for 
the  same,  or  proceed  by  attachment,  in  case  the  offender  is  not 
to  be  found.  Provided,  /lowevcr,  that  this  section  shall  not 
apply  to  persons  actually  residing  within  five  miles  of  the 
State  line,  nor  to  any  non-resident,  who,  for  the  time  being 
may  own  in  said  county  any  estate  in  land  for  one  year,  or 
when.'— R.  s.'c.  other  higher  estate,  unless  such  non-resident  shall  bring  into 
"'62  s'.T,^2!^  file  range  more  than  at  the  rate  of  twenty  head  of  any  of  said 
i'846,'c.  58.       beasts,  for  every  two  hundred  acres  of  land  owned  by  him  in 

maiinrr  aforesaid,  in  said  county. 
Cattienottobe  4.  No  person  shall  drive  any  cattle  from  those  parts  of  this, 
corlahi'^Iihocs  o''  ^"Y  "thcr  State,  where  the  soil  is  sandy  and  the  natural 
into  the  high-  production  or  growl h  of  timber  is  the  long-leaved  pine,  into  or 
k's'c  "ir'sT  tliroui^h  any  of  the  highland  parts  of  the  State  where  the  soil, 
or  growth  of  timber,  is  of  a  dilforent  kind,  between  the  first 
day  of  April  and  (he  first  day  of  November,  under  the  penalty 


vember. 
Penaltv,  S  5. 


Non-residents 
within  5  miles 
of,  or  owning 
land  in  the 
State,  exempt 
from  penalty. 


Chap.  17.]  cattle,  and  other  stock.  II7 

of  four  dollars  for  each  head  of  cattle  so  driven,  to  be  recovered 
as  last  aforesaid. 

5    No  person   shall  drive   any  cattle  from   any  part  of  the  When  driven 
btate  through  any  other  part  thereof,  without  first  obtaininc^  f™""  one  part 
and  carryuig  with  him  a  certificate  under  the  hands  and  seals  ^0"^'^- 
01  two  justices  of  the  peace  of  the  county  where   such   cattle  ""'errmust  be 
were  severally  purchased  or  collected  from  range,  accompanied  i!:::!^^  ^j!" 
with  an  affidavit  of  the  owner  setting  forth   t?ie   place   where 
said  cattle  were  purchased,  or  had  ranged  as  aforesaid,  and  de- 
scribing therem  the  nature  of  the  soil  and  growth  of  timber  on 
such  place  ;  and  also  that  said  cattle  were,  at  the  time  of  pur-  jn.icmeanor 
chase  or  removal,  sound  and  free  from  any  infectious   distem-  for  ju"fce  " 
per      And  If  any  justice  shall  grant  such  certificate   without  S^fSu 
such  aiiKlavit  of  the  owner,  it  shall  be  deemed  a  misdemeanor  ^ffidavit-R. 
in  office.  S.  c.  17,  s.  5. 

6    No  person  shall  let  go  at  large  any  stone-horse  or  stone- swhorses 
mule  of  two  years  old  or  upwards,  upon  penalty  of  forfeiting  ^"^'™"'f  2 
twenty  dollars  to  the  taker  up  of  ^n}  such  stonlanimal,  prol^oTt^"" 
vided  the  same  be  found  running  at  large  not  within  the  con-  K^i^''^ ^.^^-T 
fanes  of  any  fence,  water,  marsh,  or  swamp.  "'   '''•  '^• 

7.  When  any  cattle  or  other  live-stock   shall  be   killed,  or  Remedy  before 
otherwise  injured,  by  the  engines   or  cars  running  upon  Lny 'TTJ^f , 
ailroad,  the  owner  may  sue  out  a  warrant  from  any  jEstice  o^f  ™n^oads  1°° 
the  peace  and  have  the  same  served  on  the  president,  or  any  ^'^^  "■''''■'■ 
director,  stockholder,  or  acting  agent  for  such  railroad  com- 
pany ;  and  upon  return  thereof,  such  justice   shall   cause  two 
freeholders  to  be  summoned,  who  after  being  duly  sworn  by 
him  sha  1  hear  evidence,  and  upon  proof  of  such   injury,  shall 
assess  the  amount  of  damages  which  the  owner  shall   have 

cl!t  nn"+l  '  7  ' '^^J^f  if  «'>=^11  enter  judgment,  and  issue  exe- 
cution therefor  against  the  said  companyf 

npf  UP°"  f  ^plaint  made  to  a  justice  of  the  peace  by  any  For  sheep  !n- 
person  that  his  sheep  have  been  killed  or  damaged  by  a  do-  ■'"t^^  ""S?- 
the  justice  shall  issue  his  warrant  directed  to  any  lawful  ofii-  '"•*" 

cer,  commanding  him  to  bring  before  said  justice,  within  thirty 
days  from  the  date  of  said  warrant,  the  owner  of  such  dog,  o^ 
the  master  of  any  slave,  or  parent  of  any  minor  child,  reputed 
to  be  the  owner;  and  the  justice  shall  summon  to  appear,  at 
the  same  time  and  place,  three  freeholders,  who,  together  with 
?enTnt  '  '-f"'  '''  If''^"""'?^  °^  ^°^'^  e'ompl^ina^nt  and  de- 
IZf      u  fl     '^  "P°"w'"  ^'■'^''  ^'^^^  J"«ti^e  ^"d  a  majority  of 

nm-  rhife  f.  ,  f"!^"*^?^'  r  ^y  '^"  '^"g  °f  the  slave  or  mi- 
noi  child  of  the  defendant,  the  justice  shall  render  iud-ment 
against  the  defendant,  in  favor  ^f  the  compla  nan  ,  o  1™  m 
not  exceeding  twice  the  amount  of  the  real  damage' sutain"d 
and  issue  execution  therefor.  ^    --"sutuiLu, 

shaVbrnri'f"*'"''^''^'""'    ^''^'^'    °'   character   of  the    dog  Ignorance  of 

shall^be  no  detence,  m  actions  arising   under  the  preceding  ^-l-^- 

fence. 


118 


CHARITIES. 


[Chap.  18. 


CHAPTER   18, 


CHARITIES. 


Section 

1.  Trastees  of  charities  to  return  account 
of  their  trusts  to  county  court. 

2.  If  they  fail,  or  mismanage  their  trusts, 
attorney-general  or  solicitor  shall  call 
them  to  account  in  equity. 


Section 

3.  May  be  sued  at  the  suggestion  of  two 
citizens. 

4.  Attorney-general  and  solicitor  allowed 
fees  in  such  cases. 


Trustees  of  1.  When  real  Of  personal  property  may  have  been  granted 

charities  to  re-  ^      deed,  will,  or  otherwise,  for  such  charitable  purposes  as  are 

turn  account         j  '  '         .        ,,.,,         .,         ^  , ,  ,, 

of  their  trusts  allowed  by  law,  it  shall  be  the  duty  of  those,  to  whom  are  con- 
!!.R"s'^c''Tr'  fided  the  management  of  the  property  and  the  execution  of 
s.  1.— ksEiiz.  the  trust,  to  deliver  in  writing  a  full  and  particular  account 
<=•  *■  thereof  to  the  court  of  pleas  and  quarter-sessions  of  the  county, 

where  the  charity  is  to  take  effect,  at  the  first  term  which  shall 
be  held  after  the  first  day  of  January  in  each  year,  to  be  filed 
among  the  records  of  the  court. 
If  theyfail,  2.  If  the  foregoing  requisition  be  not  complied  with,  or  there 

T  Tr'^tru™' °at-  ^6  rcasou  to  believe  that  the  property  has  been  mismanaged 
tmnej-lm.'ot  through  negligence  or  fraud,  it  shall  be  the  duty  of  the  chair- 
^"h'^'h'em^to'L- 1"^'^  °f  the  court  to  give  notice  thereof  to  the  attorney-general 
count  iniquity'  or  solicitor,  who  represents  the  State  in  the  superior  court  of 
—  R.  S.  c.  IS,  jj^^^^  f^j  ^jjg^|.  county  ;  and  it  shall  be  his  duty  to  file  a  bill  in 
^'   ■  equity  in  the  name  of  the   State  against  the  grantees,  e.vecu- 

tors,  or  trustees  of  the  charitable  fund,  calling  on  them  to  ren- 
der a  full  and  minute  account  of  their  proceedings  in  relation 
to  the  administration  of  the  fund  and  the  execution  of  the 
trust. 
May  be  sued  at      3.  The  attorney-general  or  solicitor  may  also,  at  the  sug- 
the'suggestion    gestion  of  two  reputable  citizens,  commence  a  suit  in  equity 
^Eys'c!  kT' as  aforesaid;  and  in  either  case,  the  court  may  make  such 
s-  3-  order  and  decree  as  shall  seem  best  calculated  to  enforce  the 

performance  of  the  trust. 
Att'y-generai        4.  The  court   may  allow   fees   to   the  attorney-general   or 
and  solicitor     solicitor  for  his  services,  to  be  paid  by  the  trustees,  the  estate, 

allowed  fees  m  ^"'  ,     n  ,  i         i  l      ii  i. 

such  ciisos.  —    or  the  county,  as  shall  be  ordered  by  the  court. 

E.  S.  c.  18,  s.  4. 


Sect.  1.  What  U  a  charily:  emanctpatim,  &c.,  1  Ire.  Eq.  436,  6  lb.  180;  /ree  school, 
2  Ire.  Eq.  9,  1  Hawks,  98;  Ibepoor,  2  Ire.  Eq.  210.  Ctmslnu-tiun  cy  pres,  2  Ire.  Eq.  256; 
Uncerlatnly,  4  Ire.  Eq.  19,  lb.  26,  Bus.  Eq.  65,  2  Ire.  Eq.  255. 


Chap.  19.]  clerks  of  the  couxty  axd  superior  courts. 


119 


CHAPTER    19. 


CLERKS   OF  THE   COUNTY  AND   SUPERIOR  COURTS. 


Section 

1.  Clerks  of  county  and  superior  courts, 

when  and  how  elected.  Returns  of 
election,  hpw  made. 

2.  Who  qualified  to  vote. 

3.  Sheritl'  to  declare  the  persons  elected. 

Clerks  to  hold  ofFice  four  years. 
Who  to  decide  in  case  of  a  tie,  and 
contested  elections. 

4.  Clerks  to  give  bonds  and  take  oaths. 

On  failnre,  court  to  appoint  another. 

5.  Vacancies  in  clerkship  of  superior  and 

county  court,  how  filled.  How  in 
clerkship  of  county  court  between 
terms. 

6.  In  certain  cases  twelve  justices  may 

accept  clerk's  bond,  unless,  c&c. 

7.  Judge   appointing    in  vacation  may 

empower  two  justices  to  qualify  and 
take  bond,  who  shall  return  bond, 
&c.,  to  next  court. 

8.  Clerks  to  give  bond  in  fifteen  thousand 

dollars,  for  faithful  discharge  of  ev- 
ery duty. 

9.  How  bonds  of  the  several  clerks  shall 

be  proved,  and  where  deposited. 
10.  Registered. 


Section 

11.  Kept  as  records  ai*e. 

12.  Renewed  annually.     Clerks  to  pro- 

duce receipts  for  all  public  moneys 
paid  before  renewing. 

13.  Penalty  for  acting  without  qualifying. 

14.  Going  out  of  office,  to  transfer  records, 

&c.,  to  successors,  —  or  when  the  of- 
fice is  vacant,  to  whom  the  court 
may  appoint.  Judge  may  give  order 
for  delivery  of  records,  &c.  Penalty 
for  not  delivering  records,  &c.,  one 
thousand  dollars. 

15.  Clerk's  oflice  to  be  kept  at  court-house. 

Deputies  how  qualified;  to  act  in 
case  of  death  of  clerk. 

16.  To  whom  clerks  shall  resign. 

17.  County  courts,  in  certain  cases,  may 

remove  their  clerks  and  appoint 
others. 

18.  When  clerk  of  county  court  removes, 

how  proceeded  against. 

19.  Clerks  going   out    of   ofiice,   having 

failed  to  perform  their  duties,  court 
may  cause  duties  to  be  done  and 
recover  the  amount  paid  for  such 
service. 


1.  On  the  first  Thursday  of  August,  in  the  year  one  thou-  Clerks  of  conn- 
sand  eight  hundred  and  fifty-seven,  and  at  the  same  time  every  %^^^i^  ^,X''°' 
four  years  thereafter,  a  poll  shall  be  opened  for  the  election  of  and' how  eLV 
a  clerk  of  the  superior  and  county  court  in  each  county,  by  the  '''^• 

same  persons,  in  the  same  manner,  and  under  the  same  rules 

and  regulations  as  polls  are  opened  and  held  for  members  of 

the  General  Assembly;  and  the  returns  of  the  polls  shall  be  Returns  of 

made  in  like  manner  and  time,  and  under  the  same  penalties  fiv.?',!"!!:;;'"''^ 

for  omission,  recoverable  in  like  manner  and  by  the  same  per-  c"i9';'s.  u' 

sons,  as  in  elections  of  members  of  the  General  Assembly. 

2.  All  persons  qualified  to  vote  for  members  of  the  house  of  Who  qualified 
commons  in  the  General  Assembly,  shall  be  entitled  to  vote  ^^  lo^s' T  "•  *' 
for  clerks  of  the  county  and  superior  courts  in  their  respective    '     ' " "" 
counties. 

3.  The  sheriff  or  other  person  qualified  to  hold  said  elections  Sheriffto  de- 
shall,  at  the  court  house,  declare  the  person  having  the  highest  son'Viocted'" 
number  of  votes  duly  elected  clerk  of  the  county  or  superior '°"' '''"' '  ' 
court  as  the  case  may  be ;  who  shall  continue  in  office  for  the  Clerks  to  hold 
term  of  four  years  next  after  their  qualification  ;  and  if  two  or  ;'.ei's '""'" 
more  persons  have  an  equal  and  the  highest  number  of  votes 

for  either  of  the  said  offices,  the  court  of  pleas   and  quarter- 


120  CLERKS    OF   THE   COUNTY   AND    SUPERIOR   COURTS.  [ChAP.  19. 

Wio  to  decide  sessions,  a  majority  of  the  justices  being  present,  shall  proceed 


election.  — R.    under  the  like  circumstances;  and  said  court  shall  be  a  com- 
'  ■  ■     petent  tribunal  to  decide  all  contested  elections  under  this 


and  contested  '  to  make  the  election  as  prescribed  for  the  election   of  sheriff 
under 
petent 
chapte 

Clerks  to  give       4  The  clerks  elected  under  the  provisions  of  this  chapter,  at 

oattis.  the  first  term  of  their  respective  courts,  which  shall  happen 

after  their  election,  or  at  the  term  or  time  when  elected,  by  the 
court  or  justices,  shall  execute  and  tender  the  bonds,  and  take 
the  oaths  prescribed  by  law;  and  where  a  vacancy  shall  be 
occasioned  by  failure  to  give  the  necessary  bonds,  or  neglect  to 

On  failure,       qualify,  death,  or  otherwise,  the  court  in  which  such  failure 

court  to  appoint  T^  /'  1      n   m     1  ■        1  •■      1   • 

another.  — R.    may  happen  shall  till  the  vacancy,  in  the  manner  prescribed  in 
S.  c.  19,  s.  4.     ^i^g  following  section  for  vacancies  occurring  after  qualification, 
and  the  person  appointed  shall  continue  in  office  until  the  next 
regular  election  and  qualification  of  clerks  under  this  chapter. 
Vacancies  in         5.   Whenever  the  office  of  the  clerk  of  the  superior  or  county 
sup^erlor'and     court  shall  become  vacant  after  qualification   of  the  person 
county,  court,    elected,  by  resignation  or  otherwise,  the  same  shall  be  filled  for 
the  unexpired  portion  of  the  term;  that  of  the  superior  court, 
by  the  judge  in  whose  riding  may  be  the  vacancy  ;  and  that  of 
the  county  court,  by  the  county  court  at  its  next  term,  a  ma- 
How  ill  clerk-  jority  of  the  justices  being  present ;  and  if  the  office  of  clerk  of 
court,  betweeii  the  couiity  court  shall  become  vacant,  by  the  death  of  the  in- 
terms.  — E.  s.  cumbeiit,  between  terms,  and  there  shall  be  no  lawful  deputy, 
1844,' c.  4.        the  sheriff  shall  summon  the  magistrates  of  the  county  to  meet 
at  the  court  house,  within  fifteen  days  after  the  demise  of  the 
deceased  clerk,  and  a  majority  of  them  shall  elect  a  clerk,  who 
shall  hold  his  office  until  the  next  regular  election  by  the  peo- 
ple, as  provided  in  this  chapter. 
In  certain  cases      6.  In  the  absence  of  a  majority  of  the  justices,  twelve  may 
may^accapt"^*^^  take  the  bond  of  the  clerk  and  qualify  him  ;  but  they  shall  not 
clerk's  bond,     accept  any  bond  previously  rejected  lay  a  majority. 
i846*^c.  6? "~        '''•    Where  any  appointment  of  a  clerk  shall  be  made  by  a 
Judge  appoint- judge  in  vacation,  and  it  shall  be  inconvenient  for  him  to  qual- 
ma"empo\ver'  ify  the  person  appointed,  and  take  of  him  the  bond  required, 
two^iustices  to  he  may  issue  a  commission  to  two  magistrates  of  the  county 
bond  who sha a  for  which  the  appointment  is  made,  authorizing  them  to  ad- 
return  the  bond  minister  the  oaths  of  office,  and  take  the  bond;  which  oaths 
court."— 1838^  shall  be  subscribed  by  the   clerk,  and  with  the  bond,  be  re- 
0.7,8.1,2.       turned  by  the  commissioners  to  the  judge  at  the  next  term  of 
the  superior  court  of  the  county.     And  in  case  the  evidence, 
of  the  appointed  clerk  having  taken  the  oaths  and  executed 
the  bond  of  office,  be  not  exhibited   to  the  judge  at  the  suc- 
ceeding court;  or  if  the  bond  shall  be  unsatisfactory,  and  is 
not  then  made  satisfactory,  the  office  shall  be  deemed  vacant 
and  shall  be  filled  by  the  judge. 
Clerks  to  give      8.    The  clerks  of  the  county  and  superior  courts  shall  each 
foTfiiithfurdis- execute  a  bond  with  two  or  more  able  sureties,  in  the  sum  of 
charge  of  every  fifteen  thousand  dollars,  payable  to  the  State  of  North  Caro- 
19  "s.  7-  c.  28  lin^  ^"d  conditioned  for  the  safe-keeping  of  the  records  of  their 
s.  11. 


Chap.  19.]    clerks  of  the  county  and  superior  courts.  121 

respective  courts,  for  the  due  collection,  accountino-  for  and 
paying  all  moneys  which  may  come  into  their  hands  by  virtue 
of  their  office,  and  for  the  faithfol  discharge  of  the  duties  of 
their  office  in  all  respects  whatsoever. 

9.    The  judges  of  the  superior  courts  of  law  shall  cause  the  How  beds  of 
bonds  taken  by  them  from   the   clerks   of  the   superior  courts  "rr^i, 
to  be  acknowledged  or  proved  before  them,  and  indorse  there-  w.^ani  '' 
on  a  certihcate  of  such  acknowledgment  or  probate  •  and  the  '''""'"  '"''1'°'- 
courts  of  pleas  and  quartei-sessions  shall  cause  all  bonds  taken  iM^'  ^^  '■ 
before  them  of  the  clerks  of  their  respective  courts,  to  be  ac- 
Jmowledged  or  proved  in  open  court,  and  indorse  thereon  a 
certihca  e  of  such  acknowledgment  or  probate,  which  certifi- 
cate shall  be  signed  by  the  justice  who  presides  in  court  at  the 
tune  such   acknowledgment  or  proof  is  made;  and  all  bonds 
so  taken,  proved,  and  certified,  shall  be  deposited  in  the  follow- 
mg  offices   namely,  the  bond  of  the  clerk  of  the  superior  court 
shall  be  deposited  in  the   office   of  the  clerk  of  the  court  of 
pleas  and  quarter-sessions ;  and  the  bond  of  the  clerk  of  the 
ccRu-t  of  pleas  and  quarter-sessions  shall   be   deposited  in  the 
ottice  of  the  superior  court  of  the  respective  counties. 

lU.    ihe  clerks  in  whose  offices  said   bonds  shall  be  depos-  Registered.- 
ited,  shall  cause  the  same  to  be  immediately  registered  in  the  ^'-  '^^  "■ '''  '■  '■ 
registers  office  of  their  respective  counties. 

1    ^^Vi^'!''  ""^V^!  °^^!'*'  respective  courts  aforesaid  shall  safoly  Kept  as  records 
keep  the  bonds  deposited  in  their  offices,  under  the  same  rules  ?S'-~",^  ^-  '■ 
and  regulations,  as  are  provided  for  the  safe-keeping  of  the 
records  of  their  courts.  ^    ^ 

12.    The  clerks  of  the  superior  and  county  courts  shall  re-  Renewed  annu- 
new  their  several  bonds  for  the  faithful  discharge  of  their  duties  '''"•^'■-^'^■■k  t° 
m  office,  with  good  and  sufficient  security,  annually,  at  the -ip^  fo/ah 
several  and  respective  terms  of  the  courts  at  which  they  were  ^f'i  T""^' 
qualified;  and  such  as   are  qualified  in  vacation  shal/renew -vi^^-R-"" 
their  bonds  annually,   at  the   term  next  succeeding  the  nuali- ^- '^^  "•'•  "• 
^     fication  ;  and  such  of  the  clerks,  as  shall  neglect  to  renew  their 
I     respective  bonds  at  the  time  before  mentioned,  and  give  other 
and  better  sureties  when  judged  necessary  by  the  said  courts, 
.■^all  be  considered  as  having  forfeited  their  respective  offices. 
Provided  cdiuays,  that  no  clerk  shall  be  permitted  to  renew  his 
bond,  unless  he  shall  produce  from  the  public  treasurer,  county 
trustee,  and  wardens  of  the  poor,  receipts  in  full  of  all  moneys 
by  him  received  for  the  use  of  the  State  and  county  for  which 
he  shall  have  been  accountable. 

13.    Clerks  of  the  superior  and  county  courts,  before  enter- Rena'tyforact- 
ing  on  the  duties  of  their  respective  offices,  shall  take  an  oath  '^^^BT 
of  office  and  also  the  oaths  prescribed  for  public  officers  ;  and  R-  s /'".'loTs. 
f  any  clerk  shall  offend  herein,  or  shall  enter  on  the  duties  of'-  ''• 
tl?l  t?  ^"^°''%^;^  ^•^^^"^'^^  ^"d  delivers  to  the  authority  en- 
titled to  receive  the  same,  the  bond  required  by  law,  he  shall 

wi'iu/f     '^f^  ''''°  "^°"^""^  ^^'^"^^^'  °»^  h^lf  to  his'use  who 
will  sue  for  ihe  same,  and  the   other  half  to  the  wardens  of 
the  poor  of  the  county  where  the  offence  is  committed. 
11 


122  CLERKS   OF   THE   COUNTY   AND    SUPERIOR   COURTS.  [ChAP.   19. 

Goiogoutofof-      14.  Upon  the  going  out  of  office  for  whatever  reason,  of 
recm^s,' &"' to  any  clerk  of  the  superior  or  county  court,  he  shall  transfer  and 
successors;  or,  deliver  to  his  succcssor,  (or  to  such  person,  before  his  succes- 
i^'"rto '' sor  in  office  may  be  appointed,  as  the  court  may  designate,) 
■whomthecourt  all"  records,  documents,  papers,  and  money  belonging  to  the 
TmfgrZy''     office.     And  the  jadge  appointing  any  clerk  to  a  vacancy  in 
give"  order  for  the  clerkship  of  the   superior  court,  may  give  to  such   person 
ordJ.Tc."'^""'"  an  order  for  the  delivery  to  him,  by  the  person  having  the  cus- 
tody thereof,  of  the  records,  documents,  papers,   and  moneys 
belonging  to  the  office,  and  he  shall  deliver  the  same  in  obe- 
Penalty  for  not  dience  to   such   order.    And  in  case   any  clerk  going  out  of 
delivering  rec-  office  as  aforesaid,  or  other  person  having  the  custody  of  such 
Siooo'-K  s.  records,  docaments,  papers,  and  money  as  aforesaid,  shall  fail 
c.  19,  S.30. "    '  to  transfer  and  deliver  them  as  herein  directed,  he  shall  forfeit 
and  pay  to  the  State  one  thousand  dollars,  which  shall  be  sued 
for  by  the  prosecuting  officer  of  that  court. 
Cik's  office  to      15.  The  clerks  of  the  superior  and  county  courts  shall  keep 
beiieptat        their  offices   at  the   court   house  in  their  respective  counties, 
UeputieT  hiw  where,  by  themselves  or  their  lawful  deputies,  they  shall  give 
qualified;  to  act  due   attendance;  and  all  the  deputies  shall  take  the  oath  to 
of  de^-rsl  support  the  constitution    of  the    United   States  and   of  this 
c.  19,  s.  15.       State,  and  an  oath  of  office  ;  and  in  case  of  the  death  of  the 
clerk  of  any  court  in  the   vacation,  his  deputy  shall  hold  the 
office  of  clerk  until  another  shall  be  appointed  agreeable  to 
law,  and  shall  be  entitled  to  the  fees   and  perquisites  thereof 
until  such  appointment. 
To  whom  16.  No  clerk  of  the  county  court  shall  be  allowed  to  resign 

cierksjhall  re-  ^fter  his  qualification,  to  any  other  person  or  authority,  but  to 
c'.°r9,s.i6        the  county  court  of  his  county;  and   no  clerk   of  the  superior 
court  shall  be  allowed  to  resign,  after  his  qualification,  to  any 
other  power  or  authority,  but  to  the  judge  of  said  court  sitting 
in  com-t,  or  to  the  judge  assigned  to  ride  the  ne.xt  circuit  in 
which  is  situate  the  county  in  which  he  is  clerk. 
Co.  courts,  in      17.  The  court  of  pleas  and  quarter-sessions  shall  have  full 
certain  cases,    power,  ou  their  clerk  being  convicted  or  found  guilty  on  in- 
Sdm-kland  dictmcnt  for   neglect  of  duty   or   misdemeanor  in    office,  to 
appoint  otiiers.  remove  such  clerk  and  proceed  to  the  election  of  another,  un- 
17.  ■"■    '^'    der  the  rules  prescribed  for  filUng  vacancies  in  the  office  of 

clerk  of  the  county  court. 

wiicn  ci'k  of      18.  When  any  clerk  of  the  court  of  pleas  and  quarter-ses- 

""'  """low'""  ^'°"s  s'^^'l  remove  from  his  county,  the  court  may  make  a  rule 

™roceede°r      on  such  clcrk,  returnable  to  the  next  court  of  pleas  and  ([uarter- 

c^il'^s'io'''  ^'  sessions  of  such   county,  to  show  cause  why  he  sliall  not  be 

'*'  "        removed  from  his  office,  for  so  removing  himself  out  of  his 

county ;  which  rule  shall  be  served  on  the  clerk  if  he  resides 

in  the  State,  and  on  the  return  thereof,  if  it  shall  appear  lo  the 

satisfaction  of  tiie   court,  that  such  clerk  has  so  removed,  the 

court  shall  declare  his  office  vacated  and  shall  elect  anotiier, 

as  in  other  cases  of  vacancy.     But  in  case  such  ch'rk  resides 

out  of  the  State,  it  shall   be  sulficient  service  of  tiie  rule  to 

have  it  published  for  si.x  weeks,  in   any  newspaper  of  the 


Chap.  20.]      clerks  and  masters  in  equity.  123 

State;  which  publication  being  made  appear  at  the  next 
court,  and  proof  being  made  of  such  removing,  the  court  shall 
remove  the  clerk  from  his  office,  as  in  case  of  actual  service  of 
the  rule. 

19.   Whenever,  upon  death    or   resignation,   removal    from  ci.,ks  ^roin. 
odice,    or  at  the    expiration    of  his  term  of  office    any    clerk  »"'^io«i«'i>"l 
afore.^aid  shall  have  failed  to  discharge  any  of  the  dutiei  of  his  peS'llfel;" 
office,  the  court,  if  practicable,  shall  cause  the  same  to  be  per-  ''""f-  "'« 
tormed  by  another  person,  who  shall  receive  for  such  services,  cause ™hL  to 
and  as  a  compensation  therefor,  the  fees  allowed  bylaw  to  the  '^'' ^one,  and  re- 
clerk  ;  and  such  portion  thereof  as  may  be  paid  by  the  county  117 fj^''^^^ 
may  be  recovered  back  by  the  county,  by  suit  on  the  official  rsTe" ""' 
bond  of  the  defaulting  clerk  to  be  brought  on  the  relation  of  the       ' 
county. 


Sect.  .3.   Reniedvfw  cleric  tcrongfully  excluded,  6  Ire.  155. 

SECT.  i<.     What  bond  covers,  1  Jones,  364,  1  Dev.  426. 

hECT.  12.   Bonds  cumulative,  3  Dev.  451. 

Sect.  15.    Ads  of  deputy  not  qualified,  13  Ire.  452,  2  Dev.  148,  4  Ire.  355. 


CHAPTER   20. 


CLERKS  AND  MASTERS  IN  EQUITY. 


Section 

1.  Clerk  and  master  appointed  by  .judge. 

To  hold  office  four  years.     Provi- 

2.  To  give  bond  and  take  oaths.     Same 

remedies   against  him,  as  clerk  of 
the  superior  court. 

3.  Judge  appointing  to  vacancy,  out  of 

term,  may  commission  two  "justices 


Section 

to  qualify,  &c.,  as  iu  case  of  superior 
court  clerks.        * 

4.  Clerk  and  master  shall  keep  his  office 

within  one  mile  of  court  house, 
under  penalty  of  one  hundred  dol- 
lars. 

5.  Shall  keep  fair  records. 

6.  May  administer  oaths. 


1.    The  judge  of  the  court  of  equity  of  every  county  shall  Clerk  and  mas- 
appoint,  as  clerk  and  master  in  equity  of  such  county  some  1"'-='^"''""='^ 
person  of  skill  and  probity,  and  shall  ffil  all  vacancies  that  r^dfoffice 
may  happen  in  the  same  :  the  said  appointments  to  be  made  f™'-y^'"«- 
by  the  judge  in  whose  riding  the  county  may  be  when  made: 
and  the  person  appointed  shall  hold  the  office  for  the  term  of 

Zlir?    r  *'"  *^"''  of  his  qualification:  Provided,  hota- v.o.-.o.-n.  s. 
eiei,  that  when  an  appointment  shall  be  made  in  vacation  to  ^- 20,  s.  i. 
commence  before  the  next  ensuing  court,  it  shall  continue  for 

IJl'"'"'-  "'  ^f^'"  "^-^^  '^^^^^  t'^^t  court,  and  the  bond 

snail  be  given  accordingly. 

2.    The  clerk  and  master  shall  give  the  like  bond,  with  o-ood  1"°  e>y  bond 
and  .sufficient  security,  and  take  the  same  oaths  before  the  ""' *'"""'^"'" 
judges,  as  prescribed  for  clerks  of  the  superior  courts  of  law; 
and  m  a  1  respects  shall  be  subject  to  the  same  rules,  regula- 
tions, and  restrictions,  with  respect  to  the  renewal,  probate, 


124  COMMISSIONERS    OF   AFFIDAVITS,   ETC.     [CuAP.   21. 

and  deposit  of  the  bond,  (except  that  the  bond  of  the  ckdc 
and  master  shall  be  deposited  in  the  office  of  the  superior 
Same  remeJies  court  clerk,)  and  ho  shall  be  liable  to  the  same  remedies  upon 
asainst  iiim,  as  jjjg  bond  and  otherwise,  for  breaches  of  duty  ;  shall  incur  the 
courf-K.Tc'  same  penalties  for  acting  without  qualification,  and  for  misde- 
20,  s.  2.  meanors  in  office,  as  clerks  of  the  superior  courts. 

Judse  appoint-  3.  Whenever  the  presiding  judge,  in  the  recess  of  the  court, 
OTU  ofTerm"°^'  ^hall  fill  a  vacancy,  and  it  shall  not  be  convenient  for  him  to 
may  empower  administer  the  oaths  of  office  and  take  the  official  bond,  he 
*uaiif'-''&c^  as  inay  cause  the  same  to  be  done  in  like  manner,  and  under  the 
in  case 'of  su'p'r  same  rules  and  regulations,  as  are  provided  and  prescribed  for 
CO.  clerks.        ^^^^   qualification   and  taking   bond  of  clerks  of  the  superior 

courts  of  law,  under  like  circumstances. 
C.  and  M.  shall      4.    The  clerk  and  master  in  equity  shall  keep  his  office  at 
within  one''^'^''  the  court  house,  or  within  one  mile  thereof;  and  any  clerk  and 
m'iieof court     master  failing  so  to  keep  his  office,  shall  forfeit  and  pay  to  the 
''enau^of'"^      State  onc  hundred  dollars,  to  be  sued  for  and  recovered  by  the 
$100.-1848,  c.  prosecuting  officer  of  the  superior  court  of  the  county. 
Shall  kee   fair      ^-    He  shall  keep  a  fair  and  distinct  record  of  the  proceed- 
records.^°^  ^^^  ings  of  the  court ;  and  the  bills,  answers,  and  decrees  shall  be 
regularly  enrolled  in  a  well-bound  book,  kept  for  that  pur- 
pose. 
May  admiuis-        6.    The  clerk  and  master  may  administer  the  proper  oaths 
S.^c^M^'sTs!'    at  all  times  and  to  all  persons,  either  witnesses  or  others,  hav- 
ing business  in  the  court  of  equity. 


Sec*  2.    ])7w«  bond  covers,  8  Ire.  7,  lb.  168,  2  Jones,  5,  lb.  8. 


CHAPTER   21. 

COMMISSIONERS  OF  AFFIDAVITS  AND  PROBATE  OF  DEEDS. 


Section 

1.  Clerks,  and  clerks  and  masters,  to  be 

commissioners  to  take  and   certify 
affidavits. 

2.  Governor  may  appoint  commissiouei's 

to  take  and  certify  probate  of  deeds, 
&c.,  in  other  States. 

3.  Such  commissioner  to   take  an  oath, 


Section 

to  be  filed  in  secretary's  office.  His 
power  and  authority. 
4.  Commission  recorded  by  secretary  of 
State,  and  certified  to  clerks  of  coun- 
ty courtft,  and  there  recorded.  Cer- 
tified copies  of  appointment  or  re- 
moval, evidence. 


Clerks  and  1.    The  clerks  of  the  courts  of  pleas  and  quarter-sessions, 

raasterrcom-  the  clcrks  of  the  superior  courts  of  law,  and  the  clerks  and 
raissioners  to  masters  of  the  courts  of  equity,  are  authorized  to  take  and 
affidavUs'-'u!  Certify  affidavits,  to  be  used  before  any  justice  of  the  peace, 
S.  c.  21,  s.  1.  judge,  or  court  of  the  State;  and  the  affidavits  so  taken  shall 
be  certified  under  the  hands  of  the  said  clerks  and  clerks  and 
masters,  respectively;  and,  if  to  be  used  out  of  the  county 


Chap.  21.]    commissioners  of  affidavits,  etc.  125 

where  taken,  also  under  the  seal  of  the  court  of  which  they 
are  respectively  clerks  and  clerks  and  masters. 

2.    The  governor  is  hereby  authorized  to  appoint  and  com-  Gov.  may  ap- 
mission  one  or  more  commissioners  in  such  of  the   States  of  P°'°' """""'""s 
the  United   States,  or  in  the  District  of  Columbia,  or  any  of  Ufy  problTf' 
the  territories,  as  he  may  deem  expedient,  who  shall  continue  tie^is,  &c.,  in 
in  office  during  the  pleasure  of  the  governor,  and  shall  haYeTs.c!^";^ 
authority  to  take  the  acknowledgment  or  proof  of  any  deed, 
mortgage,  or  other  conveyance  of  lands,  tenements,  or  hered- 
itaments lying  in  this  State,  and  to  take  the  private  examina- 
tion of  married  women,  parties  thereto,  or  any  other  writincrs 
to  be  used  in  this  State.     And  such  acknowledgment  or  proof, 
taken  or  made  in   the  manner  directed  by  the  laws  of  this 
btate,  and  certified  by  the  commissioner,  shall  have  the  same 
force  and  effect,  for  all  purposes,   as   if  the   same   had   been 
made  or  taken  before  any  competent  authority  in  this  State. 

■^   J^r*"^  commissioner  appointed   by  the  governor   afore-  Such  eommv 
said,  betore  he  shall  proceed  to  perform  any  duty  by  virtue  of  M''"'!,'"; ?^"'' 
this  chapter,  shall  take  and  subscribe  an  oath,  before  a  justice  secyf  office. 
ot  the  peace  in  the  city  or  county  in  which  such  commissioner 
shall  reside,  well  and  faithfully  to  execute  and  perform  all  the 
duties  of  such  commissioner,  according  to  the  laws  of  North 
Carolina  ;  which  oath  shall  be  filed  in  the  ofl^ce  of  the  secre- 
tary of  State :  And  thereupon   he  shall  have  full  power  and  His  power  and 
authority  to  administer  an  oath  or  aflSrmation  to  any  person  ^"th°'i<y'-R- 
who  shall  be  willing  or  desirous  to  make  such  oath  or  affirma-  '•  "^^ '^' " '• '• 
tion  before  him,  and  to  take  depositions  and  to  examine  wit- 
nesses under  any  commission  emanating  from  the  courts  of 
this  State,  relating  to  any  cause  depending,  or  to  be  brouo-ht 
in  said  courts,  and  every  deposition,  affidavit,  or  affirmatfon 
made   before   him,   shall   be  as  valid  as  if  taken   before  any 
proper  officer  in  this  State.  ■' 

4    It  shall  be  the  duty  of  the  governor  to  cause  to  be  re-  Comm-n  re- 
corded by  the  secretary  of  State  the  names  of  the  persons  who  <=orded by  seCy 
are  appointed  and  qualified  as  commissioners,  and  for  whatltmed'^' 
btate,  territory,   county,   city,  or  town;  and  the  secretary  of '='<"■''' "^ ■="• 
State,  when  the  oath  of  the  commissioner  shall  be  filed  in  his  t^rreco'ded. 
omce,  shall  forthwith  certify  the  appointment  to  the  clerks  of 
the  several  county  courts   of  the   State,  who  shall  record  the 
certificate  of  the  secretary  at  length  ;  and  all  removals  of  com- 
missioners by  the  governor  shall  be  recorded  and  certified  in 
hke  manner:  And  a  certified  copy  thereof  from  the  clerk,  or  a  Certified  copy 
cemticate  ot  the  appointment  or  removal  aforesaid  from  the  °^  'iPPO"i<ra<=n' 
secretary  of  State,  shall  be  sufiicient  evidence  of  the  appoint- "e,?J?.-R.' I"" 
ment  or  removal  of  such  commissioner  c-  21,  s.  4. 

11* 


126 


COMPTROLLER. 


[Chap.  23. 


CHAPTER    22. 

COJSOION  LAW. 

Section  1.  Common  law  declared  to  be  in  force. 

Common  law  j_  ,^j^j^  such  parts  of  the  common  law  as  were  heretofore  in 
inforce.—R.S.  force  and  use  within  this  State,  or  so  ranch  of  the  common 
''•^^'  law  as  is   not  destructive  of,  or  re)Diignant  to,  or  inconsistent 

with,  the  freedom  and  independence  of  this  State  and  the  form 
of  government  therein  established,  and  which  has  not  been 
otherwise  provided  for  in  the  whole  or  in  part,  not  abrogated, 
repealed,  or  become  obsolete,  are  hereby  declared  to  be  in  full 
force  within  this  State. 


CHAPTER    23. 


COMPTROLLER. 


Section 
i.  Comptroller  biennially  elected  by  As- 
sembly. 

2.  Bond  to  be  given,  —  where  deposited. 

3.  Oaths  to  be  taken. 

4.  Comptroller  to  settle  all  public  ac- 

counts and  keep  books. 

5.  To  keep  an  account  with  the  treas- 

urer. 

6.  And  with  individuals. 

7.  Public  moneys  recovered  by  suit  paid 

to  treasurer,  and  receipts  filed  with 
comptroller. 


Section 

6.  Balances  of  accounts  stated  annually 
and  reported. 

9.  Comptroller  to  report  annually  a  print- 
ed statement  of  accounts  of  treasury. 
Published  in  two  newspapers  in  non- 
legislative  year. 

10.  In  certain  cases  may  administer  oaths. 

11.  No  warrants,  &o.,  to  be  paid,  unless 

first  entered  and  certified  by  comp- 
troller. 

12.  Instrument    for   cancelling    vouchers 

procured. 


Comptroller  bi-      J.   j^  COMPTROLLER  shall  be  biennially  elected  by  the  General 

ennially elected    ,  ,  ,         •        .i  ,i  i  r       ^ 

by  Assembly.-  Assembly,    in    the    same   manner    as   the   public    treasurer  is 
K.  S.  c.  23,  s.  1.  eiecf^ed,  who   shall  enter  upon  the  duties  of  liis  office  on  the 
first  day  of  January,  and  continue  therein  for  two  years,  and 
until  his  successor  is  appointed. 
Bond  to  beglv-      2.   The  person  thus  elected  comptroller,  before  entering  upon 
deposTted.—     the  duties  of  office,  shall  give  bond  with  suilicient  security, 
K.  S.  C.23,  s.  2.  payable  to  the  State  of  North  Carolina,  in  the  sum  of  twenty 
thousand  dollars,  conditioned  for  the  safe-keeping  of  the  pub- 
lic books  of  accounts,  and  all  vouciiers  whicii  may  come  into 
his   possession,  and  for  the  faithful  performance  of  iiis  duty ; 
which  bond  shall  be  taken  by  the  governor  and  deposited  in 
the  treasurer's  office  for  safe-keeping.  — 

Oathto^bo  2.  The    comptroller    shall    also,    before    entering   upon    the 

c.  23,s.  3.        duties  of  his  olfice,  take,  before  some  justice  of  the  peace,  the 


Chap.  23.]  comptroller.  227 

oaths  prescribed  by  law  for  the  qualification  of  public  officers 
and  also  an  oath  of  office.  ' 

4.  The  comptroller  shall  settle  and  report  on  all  public  ac-  r      >   u     . 
counts  of  the  State,  and  keep  regular  books  and  statemer^s  of -"^'"^^^^^^^^ 
the  .same,  which  he  shall  do  in  the  manner  following,  to  wit :  'SXk"' 
he  shall  report  the  net  amount  which  shall  become  annually  i^«' 0^23X4. 
due  and  payable  from   the   respective  revenue  officers  to  the 
treasurer  of  the  State,  (to  the  end  that  he  may  be  informed  of 

the  same,  and  enforce  the  due  payment  thereof,)  first  raising 
an  account  and  debiting  in  his  books  each  officer  so  reported, 
wliom  he  shall  credit  by  the  amount  of  such  receipts  as  any 
of  them  shall,  from  tune  to  time,  produce  from  the  treasurer. 

5.  Ihe  comptroller  shall  open  an  account  with  the  treas- To  keen  .n  .c 
urer,m_  which  he  shall  debit  him  with  the  amount  of  eadi --*-"«- 
respective  receipt  which  the  treasurer  shall  give,  according  to  s!r2^;r5''- 
the  fourteenth  section  of  the  chapter  concerning  the  treasurer 

and  which  pursuant  thereto,  shall  have  been  filed  in  his  office 
and  credit  him  by  tlie  amount  of  such  warrants  and  other  cash 
claims  as  he  shall  produce  and  deliver 

6.  The   comptroller  shall  also  raise  accounts,  and  report  in  And  with  huii- 
l.ke  manner  against  individuals  who  may  bJ-come  chargeable  viduak'.-E."^. 
on  any  of  the  warrants  or  vouchers  paid  to  them,  as  though  "'''"'' 
they  were  revenue  officers,  taking  care  not  to  blend  such  Re- 
ports and  accounts  with  any  others,  which  may  be  raised  and 

made  on  vouchers  m  the  comptroller's  office. 

7  All  moneys   payable  to   the  public,  which  shall  not  be  Public  n>o„ev3 
paid  in   due  time,  but  shall   be  sued  for  and  recovered,  shall  -cov^reTb;'' 
when  received  be  paid  into  the  public  treasury  by  the  derk  of  iT-t^tr  ti 
the  court  in  which  the  recovery  inav  be  had ;  and  the  receipts  ^^!^f"^^ 

8  Tlie  coinptroUer,  on  the  first  day  of  November,  annually  B^i^nccsof  nc- 
shali  strike  a  balance  against  the  treasurer  and  all  other  public  '™"%''"'1 
accouatants  in  an-ears^  and  shall  biennially  report  a  statement  r"A^. 
of     he  same  to  the  General  Assembly,  with  whom  he  shall '•  ^- ''•'• '• 
settle  his  own  accounts  for  the  warrants  and  other  claims  re- 
ceived of  the  public  treasurer;  and  in  the  year  when  the  Gen- 

a  like  leport  to  the  governor. 

after  ll^Y\^A  *^'  ^"^J'"'  '^''^y  °^  *^^  comptroller,  immediately  Compt-r  to  re- 
altei  the  first  day  of  November,  in  every  year,  to  prepare  the  1™^  """"ally  a 
account  of  the  public  treasurer'  with  tlfe^Sta'te^r^L  same  S^of.^" 
shall  appear  on  the  books   of  the  comptroller's  office  for  the '""'"' "f"'^=^- 
year  preceding  that  day,  stating  the  balance  of  the  money    n  ""'■ 
the  treasury  at  the  last  settlement,  the  receipts  into  the  treas- 
Sr  which  ^  year,  particularizing  the  moVy  and   accom  t 

recdvXffrn  V''^""™"^,^"^  '''''''  received,  the  amount 
received  from  each  respectively,  and  a  particular  statement  of 
the  disbursements  from  the  treasury  within  the  same  pe  io2 

t^  the  :.T"'^  '■"r'"'"^  '"  *^  ^^'^^-"T  ■'  --'  he  shall'aiuiex 
to  the  said  account  a  statement  of  the  revenue  from  each  sub- 


128 


CONSTABLES. 


[CUAP.    24- 


ject  of  taxation  in  every  county  of  the  State ;  of  wliich  account 
and  statement  the  comptroller  shall  cause  to  be  yearly  printed, 
in  pam|)hlet  form,  two  hundred  and  fifty  copies  before  the 
third   jNIonday   of  the   said  month   of  November;  ten   copies 
whereof  shall   be  placed  in  the  State  library,  five  in  each  of 
the  offices  of  governor,  secretary  of  State,  treasurer,  and  comp- 
troller,  and  five   in   the    University :  the  residue  shall  be  de- 
livered by  the  comptroller  to  the  General  Assembly  at  its  next 
meeting.     In   addition    to    such    publication,  the   comptroller 
Published  in     shall,  in  the  year  when  the  General  Assembly  shall  not  have 
pIpersTn  nou-  its  regular  session,  cause   the   same  to    be   published  in  two 
legislative        newspapers  printed  at  the  seat  of  government ;  and  for  such 
2rs!"9.— 1844,  printing  and   publication,  the  treasurer  shall  pay  a  reasonable 
0.17,5.1,2.      price  on  the  certificate  of  the  comptroller. 

In  certain  cases  10.  The  comptroller  is  authorized  to  administer  an  oath  to 
teroaA™-R'  accountants  and  witnesses,  in  support  of  the  justice  of  such 
S.  c.  23,s.  10.    accounts  as  maybe  exhibited  to  him  for  liquidation,  and  to 

certify  the  same  accordingly. 

Nowairants  11.  No   claim,  draft,  or  warrant  from  the  governor  or  any 

unless"  firsre'il-  0"^  else,  except  the  certificates  for  the  services  of  the  members, 

teied  and  cer-   clerks,  and  waiters  of  the  General  Assembly,  and  the  certifi- 

trofien-itT'  cates  of  the  clerks  of  the  superior  courts  for  the  salaries  of  the 

c.  28,  s.  11.       judges  and  the  attorney-general  and  solicitors,  shall  be  paid  by 

the  treasurer,  until  such  claim,  draft,  or  warrant  shall  have  been 

entered  in  the   comptroller's  office,  and  charged  to  the  person 

drawing  the  same,  with  the  comptroller's  order  indorsed  to  the 

treasurer  to  pay  the  same ;  and  no  claim,  warrant,  or  draft, 

(except  as  before  excepted,)  shall  be  allowed  in  the  settlement 

of  the  account  of  the  treasurer,  but  under  the  foregoing  rules 

and  regulations. 

12.  The  comptroller  shall  procure  and  keep  an  instrument 
of  not  less  than  one  and  a  half  inches  in  diameter,  for  cancel- 
ling papers  so  as  not  to  render  them  illegible,  and  the  vouchers 
in  the  comptroller's  office  shall  be  thus  cancelled. 


Instrument  for 
cancelling 
vouchers  pro- 
cured. 


CHAPTER    24. 


CONSTABLES. 


Section 

1.  Numher  of  constables  in  each  county. 

Town  districts,  how  many. 

2.  Constables  elected  annually,  in  each 

captain's  district.  At  what  time. 
To  (pialify  before  county  court,  and 
give  bond. 

3.  Judges  of  election,   how  appointed. 

Notice  given.  Qualiflcatioil  of  elec- 
tors,   licturn  made  to  county  court. 


Section 

4.  On  failure  to  elect,  county  court  to 
appoint,  and  in  case  of  tie  or  con- 
tested election,  to  decide. 

6.  Penalty  for  unlawful  voting. 

6.  Vacancies  filled  by  county  court. 

7.  Bond,  how  conditioned. 

8.  Oaths  to  be  taken. 

fl.  Power  and  duty  of  constables. 
10.  Constables   to  execute   notices  con- 


Chap.  24.]  .    constables.  129 


Section 


cerning  matters  witliin  justice's  ju- 
risdiction—  by  delivering  copy.  Re- 
turn evidence. 


Section 

11.  Special  constables,  in  certain  cases, 
appointed  by  justices. 


1.  There  shall  not  be  a  greater  number  of  constables  in  the  Numberof con- 
several  counties  in  the  State,  than  one  in  each  captain's  dis- cou'',|f. "' '""^'^ 
trict,  except  the  districts  including  the  several  county  towns,  ™™^' 
which  districts  shall  be  entitled  to  two  constables  each,  to  be 

elected  as  other  constables ;  and  except  further,  that,  when  a  Town  districts, 
town  shall  be  parted  in  the  division  of  counties  into  captains'  J"! '"'"TT, 
di.stricts,  each  district  including  a  part  of  such  town  shall  be  -le'is",  c.'n. ' 
entitled  to  two  constables,  one  for  the  town  part  thereof,  and 
one  for  the  county  part  of  the  district. 

2.  Within  thirty  days  before  the  court  of  pleas  and  quarter-  Constables 
sessions  of  any  county  which  shall  first  commence  its  sessions  ^uylneach" 
after  the  third  Monday  in  December,  the  inhabitants  of  each  captain's  dis- 
captain^s  district  within  the  several  counties,  at  the  usual  place  [[^e    ^"'^'" 
of  holding  the  company  muster  within  the  district,  shall  elect  ' 

some  fit  and  suitable  peri^on,  residing  within  the  bounds  of  said 

company,  to  act  as  a  constable  for  the  succeeding  year,  who 

shall  be  returned  to  the  court  of  pleas  and  quarter-sessions  of 

said  county,  as   hereinafter  directed;  and,  upon   such  return 

being  made,  under  the  certificate  of  the  judges  appointed  to 

hold  the  election,  the  court  shall  proceed  to  qualify  the  person  To  quaiifv  be- 

returned,  to  act  as  constable  for  one  year  thereafter,  he  first '''"'''  ""^^y 

giving  bond  with  good  and  sufficient  security :  Provided,  that  bond.'-ll^s'' 

no  person  shall  be  entitled  to  vote  for  constable  of  a  town  %%*'^-^— 

except  he  shall  live  within  the  corporate  bounds  thereof;  and         ""  ^' 

no  person  living  within  the  corporate  bounds  shall  be  entitled 

to  vote  for  constable  for  the  county  part  of  the  district  in  which 

the  town  is  situated. 

3.  The  captains  of  companies  within  the  several  counties.  Judges  of  eiec- 
and  in  their  absence  any  justice  of  the  peace  within  the  district, ''™'  ^ow  ap- 
withm  the  time  prescribed  by  the  last  section,  shall  annually  i^'otice  given, 
appoint  two  discreet  and  suitable  persons  to  hold  said  election, 

who  are  required  to  give   at  least  ten  days  notice  thereof,  in 

two  or  more   public  places  in  the  district;  and  every  person  Q"!>iification of 

having   resided  for    six    months   next  preceding  the   election  "'"°'''- 

within  the  bounds   of  the  district,  who  is  entitled  to  vote  for 

members  of  the  house  of  commons,  shall  be  entitled  to  vote  in 

such  election;  and  the  person  receiving  the  greatest  number  of  1''='"™ «'•''<'=''> 

votes  shall  be  considered  duly  elected,  and  shall  be  returned,  !!TsT24 

under  the  certificate  of  the  judges,  to  the  first  court  of  pleas  ^-  3-     '    '     ' 

and  quarter-sessions  of  said  county  after  the  election. 

4.  Should  any  person  elected  constable  die,  or  from  other  On  failure  to 
cause  fail  to  qualify  and  give  the  necessary  bond ;  or  should  *"'' f™"'-'' 
any  company  fail  to  hold  an  election,  then  the  court  which  point,  nud'hi 
shall  next  happen,  seven  justices  being  present,  shall  supply  ::;;:^i:t ''re?:, 
any  vacancy  occasioned  as  aforesaid,  by  appointing  some  one  tion,  to  decide: 
residing  m  the  district;  and  in  case  there  should  be  a  tic  in  "i^'  ^-  "=•  '*• 
any  election,  then  the  court,  so  constituted,  shall  determine  ;  "  " 

and  also  determine  in  all  cases  of  contested  elections. 


130  CONSTABLES.    *  [ChAP.  24. 

Penalty  for  un-      5.  Persons  votinsr  at   such  elections   not  qualified  to  vote, 

lawful  voting.      i     1 1  i       i  •    ■  i      ,      ,  i  i ,  ■  1 1         n  • 

—  K.  S.  c.  24,  snail  be  liable  to  the  same  penalty,  as  persons  illegally  voting 
'^^  ^-  at  elections  for  members  of  the  General  Assembly. 

Vacancies  6.  Upou  the  death  or  removal  of  any  constable  out  of  the 

court.— 'rI's.^ ''O'^'i^y  J"  which  he  was  elected  or  appointed  constable,  the 
c.  24,  s.  6.        court  of  pleas  and  quarter-sessions,  seven  justices  being  pres- 
ent, may  appoint  another  person  to  fill  the  vacancy,  who  shall 
be  qualified  and  act  until  the  next  election  of  constables. 
Bond,  how  con-      7.   The  bond  required  from  a  constable  shall  be  payable  to 
8.0.24,57?.     the  State  of  North  Carolina,  in  the  sum  of  four  thousand  dol- 
lars, conditioned  as  well  for  the  faithful  discharge  of  his  duty 
as  constable,  as  for  his  diligently  endeavoring  to   collect  all 
claims  put  into  his  hands  for  collection,  and  faithfully  paying 
over  all  suras  thereon  received,  either  with  or  without  suit, 
unto  the  persons  to  whom  the  same  may  be  due. 
Oaths  to  be  8.  All  constables,  before  they  shall  be  qualified  to  act,  shall 

take,  before  the  county  courts,  the  oaths  prescribed  for  public 
officers,  and  also  an  oath  of  office. 
Power  &  duty       9.   Constables  are  hereby  invested  with,  and  may  execute 

—  r'."s.^c.''m  t^^  same  power  and  authority  as  they  have  been  by  law  here- 
s.  9-  tofore  invested  with,  and  have  executed  :  and,  in  discharge  of 

their  duties,  they  shall  execute   all   precepts   and  process  of 
whatever  nature,  to  them  directed  by  any  justice  of  the  peace 
or  other  competent  authority,  within  their  county  or  upon  any 
bay,  river,  or  creek  adjoining  thereto  ;  and  the  said  precepts 
and  process   shall  be  returned  to   the  magistrates,  or  other 
proper  authority. 
Constables  to        10.   Constables    shall   likewise    execute,  within    the    places 
concernin"'""^'  aforesaid,  all  notices  tendered  to  them,  which  are  required  by 
matters  within  law  to  be  given  for  the  commencement,  or  in  the  prosecution 
iuction.^  ^""^' of  any  cause  before  a  justice  of  the  peace;  and  the  service 
By  delivering    thereof  shall  be  made  by  delivering  a  copy  to  the  person  to  be 
Retui-n  evi-       notified,  or  by  leaving  a  copy  at  his  usual  place  of  abode,  if  in 
deuce. —  R.  S.  the  jurisdiction  of  said  constable  ;  which  service,  with  the  time 
"■     '  '■     '     ■  thereof,  he  shall  return  on  the  notice ;  and  such  return  shall  be 
evidence  of  its  service  ;  and,  on  demand  of  the  same,  the  con- 
stable shall  deliver  the  notice  to  the  party  at  whose  instance  it 
was  issued. 
Special  consta-      H.  For  the  better  executing  any  precept  or  mandate  in 
cases'"appoint-  extraordinary  cases,  any  justice  of  the  peace  may  direct  the 
ed  byjustices.  same  in  the  absence  of,  or  for  want  of  a  constable,  to  any  per- 
sTiO.    '         '  ^o'l  'lot  being  a  party,  who  shall  be  obliged  to  execute  the 
same,  under  like  penalty  that  any  constable  would  be  liable  to. 


Sect.  1.  3.  Mur.  146. 

Sect.  2.  4.  Ire.  10. 

Skct.  4.    Apimnhiient  expires  when,  11  Ire.  436,  10  lb.  329. 

Skct.  6.    13  lie.  253. 

Sect.  7.  IlnmU:  nut  aimulaihe,  7  Ire.  198;  which  linble,  12  Iro.  44,  8  lb.  26,  2  Dev. 
489,  9  Ire.  20.  Wlml  a  hmnh  of:  demand  necefsary,  3  Ire.  96 ;  miift  be  pUiintiff's  ngent, 
6  Ire.  281,  11  lb.  134 ;  mw-relurn  of  lUiim,  11  Ire.  871,  7  lb.  77;  elmm  orer  imisdiclion 
of  justice,  8  Ire.  92;  dei/ree  of  ditii/ence,  Bus.  2B,  2  Ire.  211,  3  Dev.  436,  lb.  361.  H'Ao 
to  sue  on,  10  Ire.  58,  lb.  45;  surety  cannot  sue  as  relator,  Bus.  318. 


Chap.  25.] 


CORONERS. 


131 


CHAPTEE    25. 


CORONERS. 


Section 

1.  Coroner,  one  or  more  appointed  by  a 

majority  of  justices. 

2.  Bond  given  and  renewed  annually: 

oatlis  tal<en. 

3.  In  cises  of  vacancy,  tliree  justices 

may  .appoint  till  end  of  next  term. 
To    give    bond.     Bond  of   coroner 


Section 

proved  and  registered.     Special  cor 
oner,  appointed  by  three  justices. 

4.  To  hold  inquests.    His  duty  on  the 

occasion.    Physicians  may  be  sum- 
moned.   To  be  paid  for  their  sei-vices. 

5.  When  there  is  no  sheriff,  coroner  shall 

act. 


1.  The  courts  of  pleas  and  quarter-sessions  of  each  county,  Coroner,  one  or 
a  majority  of  the  justices  being  present,  shall  appoint  for  the  ""■'e "PPointed 
county,  one  coroner,  or  if  deemed  necessary,  more  than  one ;  of  justicT-^ 
and  a  majority  of  the  votes  cast  shall  be  necessary  to  an  ?-,^-  "'  ^^'  =• 
election.  "^  '  ^• 

2.  Every  coroner  shall  execute  bond  for  the  faithful  dis- Bond  given  and 
charge  of  the  duties   of  his  office  with   good  security,  in  the  '■™^»«'i  a™"- 
sum  of  two  thousand  dollars,  (or  in  a  larger  sum  if  required  "mLn.-E.  s. 
by  the   court,)   payable   to  the    State  of  North   Carolina  and '•  ^^' '•  ^' ^• 
approved  by  the  court,  which  he   shall  annually  renew,  or  no 

longer  shall  hold  said  office.     He  shall  also  take  the  oaths  of 
pubhc  officers  and  an  oath  of  office. 

3     Whenever  in   any  county  there  shall  be  no  coroner,  it  In  cases  of  v.a- 
shall  be  the  duty  of  any  three  justices  of  the  peace  of  such  ^''"'?-^' ""''^^ 
county  to  appoint  one;  who  shall  execute  a  bond  as  required ipiS tnitnd 
in  the  precedmg  section,  and  shall  hold  his  office  until  the  end  »'' »«-^t  t'^''™- 
of  the  next  term   of  the   county  court  of  his  county,  unless  a 
coroner  be  sooner  appointed  by  the  court.    And  the  bond  taken  To  give  bond. 
ot  hun,  with  a  certihcate   under  their  hands  of  the  appoint- 
ment appended  thereto,  shall  be  delivered  to  the  clerk  of  the 
county  court,  who  shall  file  and  -keep  the  said  bond  so  certi- 
hed  in  the  records  of  his  office  ;  and  this  and  all  other  bonds  Bond  of  coroner 
ot    coroners   shall,    on    the    acknowledgment  or   proof  of  the '"'"'''''' ""'''"^S- 
execution  thereof  before  the   authorities  competent  to  receive  "'"'''' 
said  bonds,  be  certified  as   proved  or  acknowledged,  and  be 
registered  by  the  register  of  the  county  in  the  same  manner 
as  the  bonds   of  clerks  :  Provided,  nevertheless,  that  any  three 
justices   of  the  peace,  for  the  special   purpose  of  holding  an  fP,td  by" 
inquest  over  any  deceased  person,  wlien  there  shall  be  no  cor-  t''™e.i"stiees. 
oner  m  the  county  to  perform  that  duty,  .liall  appoint  such  rf-i.^'^c' 
special  coroner;    and  such    appointment    shall    certify   under  ^^--i'-"' ''^• 
their  hands,  to  the  clerk  of  the  county  court,  who  shall  file  the  "' 
same  with  his  records. 

4.    It  shall  be  the   duty  of  the   several   coroners,  whenever  To  hold  in- 
t  ley  are  informed  that  any  person  is  slain  or  suddenly  dead,  T'f  "•  m^'' 
either  by  drowning  or  otherwise,  to  go  to  the  place  wheJe  such  o':^^.""  "^  "■ 
person  is  and  forthwith  summon   a  jury  of  good  and  lawful 
men ;  whereupon  the  coroner,  upon  oath  of  said  jury  at  the 


132 


COKPORATIONS. 


[Chap.  2G. 


said  place,  shall  make  inquiry  when,  how,  and  by  what  means 
such  deceased  person  came  to  his  death,  and  his  name  if  it 
was  known,  together  with  all  the  material  circumstances  at- 
tending his  death.     And  if  it  shall  appear  that  the  deceased 
was  slain,  then  who  was  guilty  cither  as    principal  or  acces- 
sory, if  known,  or  in   any   manner  the   cause  of  his    death. 
And  as  many  persons  as  are  found  culpable,  by  inquisition  in 
manner  aforesaid,  shall   be  taken  and  delivered  to  the  sheriff 
and  committed  to  jail ;  and  such  persons  as  are  found  to  know 
any  thing  of  the  matters  aforesaid  and  are  not  culpable  them- 
selves, shall  be  bound  in  a  recognizance  with  suilicient  secu- 
rity to  appear  at  the   next  superior  court  of  law  to  give  evi- 
dence ;  of  all  which  matters  and  things  the  coroner  must  note 
up  a  record  of  his  inquisition  signed  by  the  jurors,  and  return 
the  same  to  the  next  superior  court  of  law  of  his  proper  county. 
Physicians        It  shall  be  the  duty  of  every  coroner,  when  he   or  any  of  the 
^^y^^^^'^'jj^  jurors  may  deem  it  useful  to  the   better  investigation  of  the 
paid  for  tlieu-    cause  or  manner  of  death,  to  summon  a  physician  or  surgeon, 
who  shall  be  paid  for  his  attendance  and  service  such  sum  as 
the  court  may  deem  reasonable. 
When  there  is      5.    If  at  any  time  there  shall  be  no  person  properly  qualified 
oner'simii'ac'tr  *o  act  as  sheriff  in  any  county,  the  coroner  of  such  county  is 
—  R.  s,  c.  25,  hereby  required  to  execute  all  process,  civil  or  criminal,  law- 
^'  "■  fully  issuing  on  judgments,  orders,  or  sentences  of  any  court, 

and  in  all  other  things  to  act  as  sheriff,  until  some  person  shall 
be  appointed  sheriff  in  said  county;  and  such  coroner  shall 
be  under  the  same  rules  and  regulations,  and  subject  to  the 
same  fines,  forfeitures,  and  penalties  as  sheriffs  are  by  law,  for 
neglect  or  disobedience  of  the  same  duties. 


service?.  —  E, 
S.  c.  25, 


Sect.  2.    Coroner  defado,  8  Ire.  201. 


CHAPTER    26. 


COKPORATIONS. 


Section- 

1.  General  powers  of  corporations. 

2.  S.ime  .subject. 

3.  First  meeting,  how  notified,  when  not 

provided  for  specially. 

4.  Lands  may  bo  held  and  conveyed. 

6.  Corporations  to  contiime  three  years 
after  charter  c-tpires,  to  close  their 
concerns. 

0.  When  corporations  expire,  &c.,  receiv- 
ers or  trustees  appointed  to  settle 
their  alfairs.    Their  powers. 


Section 

7.  Kquity  jurisdiction  over  receivers  or 

trustees. 

8.  lieccivers  to  pay  debts,  and  distribute 

surplus. 

9.  What  executions  to  issue,  and  what 

may  be  sold. 

10.  Who  shall  bo  deemed  the  highest  bid- 

der. 

11.  Officer  making  sale  to  convey  the  right 

of  fare  and  toll,  and  deliver  posses- 
sion of  property  connected  witli  fran- 
chise. 


Chap.  26.] 


CORPORATIONS. 


Section 

12.  Purchnser  of  a  francliise  to  have  same 

remedies  as  corporation,  for  dam- 
ages, &c. 

13.  Liabilities  of  corporation  to  continue 

after  sale. 

14.  Charitable,  literary,  mining,  and  man- 

ufiicturing  corporations  may  be  cre- 
ated. Corporators  may  enter  into 
tfertain  articles  of  agreement.  Arti- 
cles acknowledged  before  clerk  of 
county  court.  Shares  of  capital  not 
less  than  fifty  dollars. 

15.  Such  corporations  created  by  letters 

patent  issued  by  governor.  Notice 
of  incorporation,  and  substance  of 
articles  to  be  published. 

16.  Fees  of  clerk  and  private  secretary. 

17.  What  real  estate,  mining,  and  manu 

facturing  companies  may  hold. 

18.  No  dividends  declared,  if  debts  exceed 

two  thirds  of  assets. 

19.  Letters  patent  recorded  by  secretary 

of  State,  and  sopies  admissible  in 
evidence. 

20.  PHmafacie  evidence  of  incorporation. 


133 


Section 

21.  Such  corporations  forbidden  to  bank. 

22.  How   corporations    may   convey    by 

deed. 

23.  Suits  against;  at  law,  commenced  by 

summons:— In  equity,  by  subpoena. 

24.  Process,  how  served  on  corporations: 

On  what  officer  or  member. 

25.  Information  may  be  filed  against  a 

corporation.     What  set  forth. 

26.  Bond  for  costs  may  be  required  of  re- 

lators. 

27.  How  supreme  court  may  ascertain  the 

facts. 

28.  Attorney-general  may  file  a  bill  to  re- 

strain corporations  from  exercising 
powers  not  granted,  and  to  bring  cer- 
tain ofiicers  to  account,  &c.  Man- 
agers of  corporations  personally  liable 
for  fraud. 

29.  Corporations,  how  long  to  exist.    Dis- 

solution not  to  extinguish  debts. 

30.  Two  years  of  non-user  a  forfeiture  of 
charter. 

31.  Shares  in  corporations  personal  estate. 


claUXEX  til;  -Xo- StZtte"  L^^ 

o rferly  c„,  d„S,,l  Tf  7°  S°™"™»'.  i..d  fo,  the  d™  a.,d 
their  property      ^        *'"'"'  '"""•  ""''  "«=  "'<i"»g=me„t  of 

entitle  the  members  to   one  or  more    voles     ?he    „„/      I 
voting  by  pr„.y;  the  mode  of  sellii"  ,l™e?  for  tL  ^ 

offieT^h-iu-bt^is-'s  »%:;;£  sr  zn  *■' '" 

annex  ,MM.  penalties  to  >»?!,  by-„s,°   ol    t      L,"°J 
-nll^P  E  ;»  a-'-pSirS'lt^ei-rtt.^^  "-  — 

-  -  Of  aCs -x'zi  ts:  t£  ti:-  pr:ii 


General  powers 
of  corporations. 
— 1S50,  c.  50. 


Same  subject. 


Fu-st  meeting, 
how  notified, 
when  not  pro- 
vidoil   for  spe- 
cially. 


234  CORPORATIONS.  [Chap.  26. 

purposes  of  the   meeting ;  and  such  notice,  ten  days  at  least 
before  the  meeting,  shall  be  delivered  to  each  member,  or  pub- 
lished in   some   newspaper  printed   nearest  to  the   proposed 
place  of  meeting. 
Lands  may  be      4.  Every  such   corporation   may  hold  lands  to  an  amount 
held  and  con-  authorized  by  law,  and  may  convey  the  same. 
cTpo'rationsto      5.     All  corporations,  whose  charters   shall  expire  by  their 
continue  three  ^^^^  limitation,  or  shall  be  aimulled  by  forfeiture  or  oth(;rwise, 
chartefex-       shall  nevertheless  be  continued  bodies  corporate,  for  the  term 
pires,  to  close  ^f  ^j^^gg  ygars  after  the  time  when  they  would  have  been  so 
their  concerns,  ^j^^^j^^gj^  ^^^  ^^^  purpose  of  prosecuting  and  defending  suits 
by  or  against  them,  and  of  enabling  them  gradually  to  settle 
and  close  their  concerns,  to  dispose  of  and  convey  then-  prop- 
erty, and  to  divide  their  capital  stock  ;  but  not  for  the  purpose 
of  continuing  the  business,  for  which  such  corporations  may 
have  been  established, 
men  corpora-      6.  When  the  charter  of  any  corporation  shall  expire  or  be 
tious  expire,     annulled,  as  provided  in  the  preceding  section,  the  court  of 
fr'trutteelTp-  equity  for  the  county  wherein  shall  have  been  the  usual  meet- 
pointed  to  set-  j^^g  oHhe  expired  corporation,  or  the  court  which  shall  adjudge 
tietiieiraflairs.  ^^o  ^pjfgj^^^^.g  ^f  charter,  on  application  of  any  creditor  of  such 
corporation,  or  of  any  stockholder  or  member  thereof,  at  any 
time  within  the  said  three  years,  may  appoint  one  or  more 
persons  to  be  receivers  or  trustees  of  and  for  such  corporation, 
to  take  charge  of  the  estate  and  effects  thereof,  and  to  collect 
the  debts  and  property  due  and  belonging  to  the  corporation ; 
with  power  to  prosecute  and  defend,  in  the  name  of  the  cor- 
poration, or  in  the  name  of  such  receivers  or  trustees,  all  such 
suits  as   may  be  necessary  or  proper  for  the  purposes  afore- 
said ;  and  to  appoint  agents  under  them,  and  to  do  all  other 
acts,  which  might  be  done  by  such  corporation,  if  in  being, 
that  may  be  necessary  for  the  final  settlement  of  the  unfinished 
business  of  the  corporation ;  and  the  powers  of  such  receivers 
may  be  continued  beyond  the  said  three  years,  and  as  long  as 
the  court  shall  think  necessary,  for  the  purposes  aforesaid. 
Equity  juris-        7.  The  said  court  shall  have  jurisdiction  in  equity  of  such 
rlceiTersT     application,  and  of  all  questions  arising  in  the   proceedings 
trustees.  thereon  ;  and  make  such  orders,  injunctions,  and  decrees  therein, 

as  justice  and  equity  shall  require. 
Receivers  to  8.  The  said  receivers  shall  pay  all  debts  due  from  the  corpo- 

pay  debts,  and  nation,  if  the  funds  in  their  hands  shall  be  sufiicient  therefor; 
plus.  and  if  not,  they  shall  distribute  the  same  ratably  among  all 

the  creditors,  who  shall  prove  their  debts  in  the  manner  that 
shall  be  directed  by  any  order  or  decree  of  the  court  for  that 
purpose;  and  if  there  shall  be  any  balance  remaining  alter  the 
payment  of  said  debts,  the  receivers  shall  distribute  and  pay 
the  same  to  and  among  those,  who  shall  be  justly  entitled 
thereto,  as  having  been  stockholders  or  members  of  the  corpora- 
tion, or  their  legal  representatives. 
Whatexecu-  9.  If  any  judgment  or  decree,  at  law  or  in  equity,  shall  be 
tlons  to  issue,  rg^dgred  against  a  corporation,  the  plaintiff  may  sue  out  a  (its- 


Their  powers. 


Chap.  26.]  corporations. 


135 


bidder. 


ivey 


tnngas  or  fieri  facias,  as  he  may  think  proper,  which   may  be  "n<^  ^-h-it  mav 
levied,  as  well  on  the  current  money,  as  on  the  goods,  chattels,  c'-'ft  7 ''' ^' 
lands,  and  tenements  of  such  corporation;  and  if  the  judgment   ^  ' '' 
or  decree  be  against  any  railroad  or  other  corporation,  author- 
ized to  receive  fare  or  tolls,  the  franchise  of  such  corporation, 
with  all  the  rights  and  privileges  thereof,  so  far  as  relates  to 
the  receiving  of  fare  or  tolls,  and  also  all  other  corporate  prop- 
erty, real  and  personal,  may  be  taken  on  execution  and  sold 
under  the  rules  regulating  the  sale  of  real  estate. 

10.  In  the  sale  of  the  franchise  of  any  corporation,  the  per-  Who  shall 
son,  who  shall  satisfy  the  execution,  with  all  costs  thereon   or  ''"^'"'"'^d  the 
who  shall  agree  to  take  such  franchise,  for  the  shortest  jjeriod    ^^'''"  ^"^"^ 
of  time,  and  to  receive  during  that  time  all  such  f;ire  and  toll, 

as  the  said  corporation  would  by  law  be  entitled  to  demand, 
shall  be  considered  as  the  highest  bidder. 

11.  The   officer  making  sale  shall   by  deed  convey  to  the  Officer  makin 
purchaser   all    the  immunities  and  privileges  which    by   law 'jjjf  j.[°,  ™"/®- 
belong   to   the  corporation,   so   far   as  relates  to  the  right  of  fmVand't?,ii, 
demandmg  fare  and  toll;    and  the  officer  shall,  immediately""''''''.'™' 
after  such  sale,  deliver  to  the  purchaser  possession  of  all  the  proTerty "on- 
corporate  property  connected  with  the  franchise,  belonging  to  f""t"''"' 
such  corporation,  in  whatever  county  the  same  may  be  situ-  """'"'• 
ated  ;  and  the  purchaser  may  thereupon  demand  and  receive, 

to  his  own  use,  all  the  fare  and  toll,  which  may  accrue,  within 
the  time  limited  by  the  term  of  his  purchase,  in  the  same  man- 
ner and  under  the  same  regulations,  as  such  corporation  was 
before  authorized  to  demand  and  receive  the  same. 

12.  Any  person  who  may  have  purchased,  or  shall,  under  Purchaser  of  a 
the  provisions  of  this  chapter,  hereafter  purchase  the  franchise  f™°ciiiseto 
of  any  railroad  or  other  corporation,  and  the  assignee  of  such  me^es^Too?: 
person,  may  recover  in  such  action  as  the  corporation  mio-ht  P°™t>nn,  for 
have  brought,  any  penalties  imposed  by  law  for  an  injury^to  ''""'•^es,  &c. 
the  franchise  or  for  any  other  cause,  and  which  such  corpora- 
tion   would    have   been    entitled  to  recover,   during  the  time 

limited  in  the  said  purchase  of  the  franchise ;  and  during  that 
time,  the  corporation  shall  not  be  entitled  to  prosecute  for 
such  penalties. 

13.  The  corporation,  whose  franchise  shall  have  been  sold  Liahiiities  of 
as  aforesaid,  shall,  in  all  other  respects,  retain  the  same  powers  ^oXlue  aft'eJ" 
and  be  bound  to  the  discharge  of  the  same  duties,  and  liable  ''»!«• 

to  the  same  penalties  and  forfeitures,  as  before  such  sale. 

14.  Any  number  of  persons  not  less  than  five,  who  may  be  Cl"^"tabie,  lit- 
dcsirous  of  engaging  in  any  scheme  of  charity  or  benevolence,  alK[\,\anun;c5' 
or  lor  the  encouragement  and  promotion  of  education,  or  in '"■■'"?  ™''>'°™- 
t.he  business  of  mining  or  manufacturing,  at  any  place  within  c,^"  teT-' "' 
tlie  btate,  may,  if  it  please  them,  become  incorporated  in  the 

maimer  following,  that  is  ;  such  persons  shall,  by  articles  of 
agreement,  under  their   hands  and  seals,  set  forth  before  the  Corporators  to 
clerk   of  the  county  court,  where   such   mining  is  to  be  con-  eroTof 'a"ref' 
ducted  or  manufactory  established,  and  in  case  of  any  other  ment.    ° 
association,  before  the  clerk  of  the  county  court  of  the  county 


136  CORPORATIONS.  [Chap.  26. 

Articles.  where  the   meetings  may  be  held:  —  1.  The  corporate  name. 

2.   The  business  proposed.     3.  Tlie  place  where  it  is  proposed 
to  be  carried  on.     4.  The  length  of  time  desired,  not  exceed- 
ing thirty  years  except  as  to  mining  corporations  the  term  for 
which  shall  not  exceed  sixty  years.     5.  The  names  of  persons 
who    have    subscribed.       And,   in    the    case    of    mining   and 
manufacturing,  shall  also  state:  —  6.  The  amount  of  capital; 
and  7.    The   number  of  shares,  and  the  amount  of  each  (the 
Shares  of  capi-  same  not  less  than  fifty  dollars  each) ;  and  the  amount  paid  in 
tai  not  less  thim  on  each  share ;  whicli  shall  not  be  less  than  one  dollar  for  each 
1852,  c.  67,  s.i.  share,  nor,  upon  all  the  shares,  less  than  one  hundred  dollars, 
—1852,  c.  81,    j^j^(]  shall  be  paid  to  the  clerk  of  the  county  court  of  the  proper 
county ;  the  payment  whereof  shall   be  certified  by  the  clerk 
and  indorsed  on  the  said  articles  of  agreement. 
fionLreatedby      ^'^-  '^''^  ^^'"^  articles  of  agreement,  after  having  been  proved 
letters  patent    by  a  subscribing  witness,  or  acknowledged  before  and  recorded 
Notice  ofm-"^  ^y  ^'^^  clerk,  and  such  as  relate  to  mining  and  manufacturing 
corporation,  &-  being  moreover  indorsed  with  the  clerk's  receipt  of  the  money 
tidestobe'pub-  ^®  aforesaid,  shall  be  transmitted  to  the  secretary  of  State  and 
lished.— 1852,    filed  in  the  department  of  State ;  whereupon  the  governor,  on 
i'sm'c  si^sT  ^PP^i'^'^^'O'^'  shall  issue   letters   patent,  under  the  seal  of  the 
2,  3.'        '      '  State,  declaring  said  persons  and  their  successors  to  be,  and 
from  thenceforth  they  shall  be,  a  corporation  for  the  purpose 
and  according  to  the  terms  prescribed,  in  said  articles ;  and 
shall  cause  notice  thereof  to  be  published  in  some  newspaper 
printed  in  the  county  or  nearest  to  the  place,  where  said  articles 
may  be  recorded,  in  which  shall  be  set  forth  the  substance  of 
the  articles,  and,  (in  case  of  companies  having  a  capital,)  the 
amount  of  capital  and  value  of  shares. 
Fees  of  ci'k  &      16.  Every  company  incorporated  by  letters  patent  shall  pay 
isl^'^.-^^er'sT  *'^^  clerk  of  the  county  court,  a  fee  of  two  dollars  for  taking 
1852',  c.  8i',  s.  4,  the  probate  and  recording  the  articles  of  agreement,  also  the 
^°-  expense  of  publication,  and  one  dollar  for  the  charter,  for  the 

use  of  the  governor's  private  secretary. 
What  fefii^es-  17.  The  said  mining  and  manufacturing  companies  may 
manufact.  °  take  and  hold,  and  sell  such  real  estate  as  may  be  necessary 
comp's  may  for  the  transaction  of  their  business,  or  for  the  security  and 
67,  s.T,  2.—  collection  of  their  debts ;  and  as  soon  as  the  same  may  be 
1862,0.81,  s.i,  actually  organized,  the  clerk  of  the  county  court  shall  return 
'  '  '  to  the  jjroper  officer  of  the  corporation  the  money  paid  to  him. 

T'd'bts"ox(fe'ed      ^^'  ^°    such  Company    shall  declare   any    dividend,   when 
two  thirds  of    its  debts,  whether  due  or  not,  shall  exceed  two  thirds  of  its 

assets. — 1652,     assets. 

Letters  patent      ^^-  "^'^^  Secretary  of  State  shall  record  in  a  book,  kept  for 
recorded  by      that  purpose,  all  such  letters  patent  issued  under  the  authority 
ies'lvWence?—  "^  *'^'^  chapter  ;  and  copies  thereof,  certified  by  the  secretary 
I852,c.  8i,s.  8.  shall  in  all  cases  be  admissible  in  evidence. 
Prima fac'e  20.  The  letters  patent  aforesaid  shall,  in  all  judicial  proceed- 

evidenoe  of  m- j,,gg   Kg  deemed  »/"iOT4 /flcte  evidence  of  the  complete  organi- 

corporation.—        9.  '  ,    .  x-  <•   ,i  i-         xi         u 

1852,  c.  8i,s.  7.  zation  and  incorporation  ol  tlie  company  purporting  thereby 
to  have  been  established. 


Chap.  26.]  corporations.  I37 

21.   No  corporation  created  by  letters  patent  for  the  purposes  Sud,  enrpora- 
liereni  allowed,  shall,  under  any  pretence,  enmo-e  in  the  busi- ''""''  ''"-bidden 
ness  of  banking:  Provided,  hoivever,  that  in  the  transaction  c?^,^^"''' 
ot  then-  busniess,  they  may  make,  and  take  and  indorse,  when 
necessary,  all  such  bonds,  notes,  and  bills  of  exchange,  as  the 
particular  business  may  require. 

22.  Any  corporation  may  convey  lands,  and  all  other  prop-  Howcorpcra- 
erty  which  is  transferable  by  deed,  by  deed  of  bargain  and  sale  *'°°'  ™"v  Con- 
or other  proper  deed,  sealed  with  the  common  seal,  and  signed  ul^'l  'o'sT 
by  the   president,   or  presiding   member   or  trustee,  and  two 
other  niembers  of  the  corporation,  and  attested  by  a  witness. 

2d.   Suits   against  a  corporation,  when  at  law,  shall   be  by  Suits  a<^ain.t 
process   ot   summons,  reciting  the   cause  of  action,  and  sum- ''"■■'^'™'"-' 
rnonmg  said  corporation  to   appear  and  answer  the  same  on  sT^mts?' 
tlie  proper  reiurn  day,  and  shall  be  prosecuted  as  other  suits  at  i",<'n"ity  by 
law  commenced  hy  capias ;  and  when  in  equity,  shall  be  by  r2Cs.lfi^' 
siibpmia,  after   the  manner  of  other  suits  in   equity,  and  be 
served  on  the  same  persons  as  at  law,  and  shall  be  prosecuted 
as  suits  in  equity. 

24.  The  service  of  summons,  if  against  any  insurance  com-  Process  how 
pany,   railroad,    banking,    or    other    joint-stock    incorporated  '"'"'"^  "^  <=<"•- 

nSe"^'  "^"''V''  r"t  ^y  !^^-^"g  ^  -«Py  thereof  with  the  ^Zl^,, 
piesiaent  or  other  head,  cashier,  treasurer,  or  director  of  such  membe.-.-R. 
company.  If  against  the  corporation  of  any  city  or  town,  by  ^- *=•''■'•'• 
leaving  a  copy  with  the  chief  magistrate,  treasurer,  or  com*- 
missioner  of  such  city  or  town  ;  and  if  against  any  incorpo- 
rated college,  academy,  or  other  literary  institution,  by  leavin- 
a  copy  with  the  president,  treasurer,   or  any  trustee  thereof'^ 
and  If  against  any  other  corporation,  by  leaving  a  copy  with 
tlie  chiet  officer,  treasurer,  clerk,  or  any  member.     And  the 
otticer  serving  such  summons  shall  return  distinctly  on  whom 
the  service   hath  been    made,  otherwise   service  shall   not   be 
deemed  to  have  been  made. 

25.   Whenever  it   may  be  deemed  proper  by  the    General  Information 
Assembly,  or  by  the  governor,  or  attorney-general,  that  a  iu- ""^  ""= '^''''' 
dicial  inquiry  shall  be  instituted  to  ascertain  whether  any  cor-  K'r^"" 
poration,by  non-user  or  abuser  of  its  franchises,  has  incurred  a  ^^'''^i' ^"^^  ^rth. 
forfeiture  of  its  charter,  or  has  been  dissolved  by  the  surrender  ^6:  '■'•''' 
of  Its  franchises,  or  by  any  other  mode,  the  attorney-general, 
m  behalf  of  the  State,  shall  file  an  information  in  the  supreme 
court,  or  in  the   superior  court  of  law  for  the  county  wherein 
the  general  meetings  of  the  corporation  have  usually  been   or 
bylaw   ought  to    be  held,   setting  forth  briefly,  and  without 
technical  forms,  the  grounds  on  which  such  forfeiture  or  dis- 
solution is   aleged;  and   thereupon  the  court  shall  take  such 
order  for  enabhng  those  interested  to  have  due  notice  of,  and 
make  defence   against   such   information,  and  shall   make  all 
reasonable  rules  for  procuring  and  taking  evidence,  and  having 
a  tair  trial  of  the  controverted  facts. 

26.   When  the   information    shall  be  filed   by  the  attorney- .^""V"'"  ""^'t' 
general,  m  consequence  of  the  relation  of  any  person,  the  court  "i  of  .ei.'Zr 

12  *  — R.  S.  c.  26, 

s.  7. 


138  CORPORATIONS.  [Chap.  26. 

in  its  discretion  may  require  bond  with  approved  security  from 
the  relator,  to  indemnify  the  corporation  against  the  costs  of 
the  information. 
How  supreme  27.  When  this  or  any  other  information  may  be  filed  in  the 
certai"tife'"'  supreme  court,  the  court,  in  regard  to  any  facts  upon  which 
facts.— R.  S.  c.  the  finding  of  a  jury  may  be  necessary,  may  cause  a  jury  to 
26,  s.  8.  Y)Q  impanelled  in  that  court,  or  send  the  issue  to  be  tried  in 

any  superior  court  of  the  State. 
Att'y-generai        28.  It  shall  be  the  duty  of  the  attorney-general,  as  herein- 
to^restoin  toI-- ^^fo"-'"^  directed,  to  file  a  bill  in  the  nature  of  a  bill  in  equity, 
porations  from  either  in  the   supreme   court  of  the    State,  or  in  the  court  of 
Dowers'not       equity  of  the  county,  as   hereinbefore  directed,  to  restrain  by 
granted,  and     injunction  any  corporation  from  assuming   or  exercising  any 
o'ffic"re^t'o  ac-"  franchise,  or  transacting  any  business,  not  allowed  by  its  char- 
count,  &c.        ter ;  to  restrain  any  person  from  exercising  corporate  franchises 
not  granted;  to  bring  directors,  managers,  and  officers  of  a 
corporation,  or  the   trustees   of  funds,   given   for  a   public  or 
charitable  purpose,  to  an  account  for  the  management  and  dis- 
position of  the  property  confided  to  their  care  ;  to  remove  such 
officers  or  trustees,  upon  proof  of  gross  misconduct ;  to  secure, 
for  the  benefit  of  all  interested,  the  property  or  funds  aforesaid ; 
to   set  aside   and  restrain  improper  alienations  thereof,   and 
generally  to  compel  the  faithful  performance  of  duty,  and  pre- 
Managers  of     vent  all  malversation,  peculation,  and  waste.    And  in  case  of 
personally"^      fraud  by  the  president,  directors,  managers,  or  stockholders  in 
liable  for  fraud,  any  corporation,   the  court  shall  render   personally   liable  to 
— ^^  .  c.  26,     gfgjij-Q[.g   jL,^(j   others  injured  thereby,  such   of  the    directors, 
managers,  and  stockholders  as  may  have  been   concerned  in 
the  fraud. 
Corp'ns  how         29.  No  body  corporate,  hereafter  to  be  established  in  the 
disfohufon^not^  State,  shall  exist  for  a  longer  term  than  thirty  years,  unless 
to  extinguish    otherwise  provided  in  the   act  creating  the  same :  but  in  the 
gl'^g'^'^J'j '^' "■  case  of  a  dissolution   of  a  corporation   by  any  judgment  or 

decree,  the  debts,  due  to  or  from  it,  shall  not  be  extinguished. 
Two  years  of        30.   When  any  act   shall  have   passed  creating  a  body  cor- 
fe°iture  rf  char-  porate,  and  the  corporators,  for  two  years,  shall  neglect  or  fail 
ter.— R.  S.  c.     to  organize  the  company  and  can-y  into  efTect  the  intent  of  the 
^^'^•■'^'  act;  or  when  organized,  if  they,  at  anytime  for  two  years 

together,  shall  cease  to  act,  then  such  disuse  of  their  corporate 
privileges  and  powers   shall   be  deemed  and  taken  as  a  for- 
feiture of  the  charter. 
Shares  in  cor-       31.   The  shares  of  stock,  in  all  incorjioratcd  joint-stock  com- 
sonal'estate!'—  Panics  in  the  State,  shall  be  deemed  personal  estate;  and  as 
K.  S.  c.26,s.  13.  such  may  be  held  by  aliens. 


Skct.  1.   Cnn  sue  in  its  enrporale  nnme  ojih/,  4  Ire.  Kq.  195. 

Sect.  0.  Effect  of  ilissohtiiim,!  Ire.  Kq.  358. 

Skct.  9.  £xecutinii  iiifniiiM  rnijroiid  companies^  B  Ire.  297. 

Sect.  24.    Whcrf  nnil  on  vhoni  process  w  to  be  served,  3  Ire.  Eq.  471. 

Sect.  25.  Form  of  information ;  viltat  a  forfeiture,  6  Ire.  456. 


Chap.  28.]      county  revenue  and  charges. 


139 


CHAPTEE    27. 


COUNTY   BOUNDARIES. 


Section 
3.  The  military,  to  be  the  boundary,  un- 


Section 

1.  Disputed  lines  between  counties,  how 

settled. 

2.  Commissioners  sworn.    Persons   em- 

ployed, to  be  paid. 

1.  Whenever  there  shall  be  any  dispute  concerning  the 
dividing  line  between  counties,  the  county  courts  of  each 
county,  interested  in  the  adjustment  of  said  line,  a  majority 
of  the  justices  consenting  thereto,  may  appoint  one  or  more 
commissioners,  on  the  part  of  each  county,  to  settle  and  fix  the 
line  in  dispute ;  and  their  report,  when  ratified  by  a  majority 
of  the  justices  of  each  county,  shall  be  conclusive  of  the  loca- 
tion of  the  true  line,  and  shall  be  recorded  in  the  register's 
office  of  each  county,  and  in  the  office  of  the  secretW  of 
State.  -^ 

_  2.  The  commissioners,  before  entering  on  the  duties  as- 
signed them,  shafi  be  sworn  before  a  justice  of  the  peace;  and 
they,  with  all  others  employed,  shall  be  allowed  reasonable 
pay  for  their  labors. 

3.  In  all  controversies  in  and  out  of  court,  where,  before 
such  disputed  boundary  is  settled  and  fixed,  it  shall  be  mate- 
rial to  ascertain  the  boundary,  that  shall  be  regarded  as  the 
true  boundary  which  is  recognized  in  mustering  "the  militia. 


Disputed  lines 
between  coun- 
ties, how  set- 
tled—R.  S.  c. 
27,  s.  1. 


Comm'rs  to  be 
sworn.  Persons 
employed  to  be 
paid— R.  S.  c. 
27,  s.  2. 

Themilitaiyto 
bethebound'ry 
until  settled. 


CHAPTER    28, 


COUNTY  REVENUE  AND   CHARGES. 


Section 

1.  Tax  for  county  purposes  laid  by  ma- 

jority of  justices. 

2.  Collected  by  sheriff  as  State  taxes. 

3.  Fines,  &c.  to  be  paid  to  county  trustee. 

4.  Tax  on  indictments  and  suits. 

B.  Sheriff  to  collect  and  pay  over  fines, 
amercements,  &c. 

6.  Clerk  to  render  annual  statement  of 

fines,  &c. 

7.  Penalty  on  clerk,  shcriiT,  &c.  for  fail- 

ing to  pay  over  county  money. 

8.  Costs  of  prosecutions  paid  by  county 

in  certain  cases. 


9.  Witnesses  for  State  paid  by  the  county, 
when. 

10.  County  wherein  the  offence  is  done,  to 

pay  costs,  and  receive  the  fines,  &c. 

11.  County  courts  may  pay   certain  offi- 

cers for  extra  services. 

12.  Claims,  &,c.,  against  the  county  num- 

bered by  clerk,  and  copy  furnished 
to  chairman,  annually. 

13.  Pen.alty  for  failing  to  number  claims, 

&c.    His  fee  for  service. 

14.  A  statement  of  moneys  received  and 

paid   out   for   county   purposes,   to 
be  sot  up  in  the  court  house. 


140  COUNTY   REVENUE   AND    CHARGES.         [ChAP.    28. 


Section 

15.  Courts  to  lay  tux  to  pay  jurors. 

16.  Power  of  county  court  in  disposing  of 

county  funds. 

17.  County  court  may  appoint  a  commit- 

tee of  finance.    Tlieir  duty  and  pow- 
ers. 


Section 

18.  Committee  to  investigate  the  county 

finances,  and  report  to  court.     Pay 
of  committee. 

19.  Any  officer  failing  to  settle  after  ten 

days'  notice,  to  forfeit  one  hundred 
dollars. 


Tax  for  county  1.  The  justices  of  the  several  county  courts,  a  majority 
Ev'maforin-'^of  being  present,  at  their  first  court  which  shall  happen  after  the 
justices.— R.  s.  first  day  of  January  in  every  year,  shall,  for  county  purposes, 
c.  26,  s.  1.         jg^y  ^  ^^^  Qj^  Ijjg  lands  with  their  improvements  situate  in  the 

county,  and  a  tax  on  the  free  and  black  poll. 
Collected  by         2.  The   county  and   poor  taxes   shall   be   collected  by  the 
sheriff  as  State  sheriffs  of  the  respective  counties,  who  shall  be  entitled  to  the 
28^s!  27^^' ^' "^' same  commissions  and  subject  to  the  same  rules  and  regula- 
tions, in  respect  to  their  settlement  of  the  said  taxes,  with  the 
county  trustees  and  wardens  of  the  poor,  as  they  are  in  their 
settlements  of  the  public  tax  with  the  treasurer  of  the  State  : 
and  they  shall  also  settle  with  the  wardens  of  the  poor,  and 
the    trustees   of  their  counties,  for  the   taxes  on  the  unlisted 
property  in  their  counties,  under  the  same  rules  and  regula- 
tions as  they  account  with  the  comptroller  of  the  State. 
Fines  &c  to  be      "^-  -'^'^  fi'i^s,  forfeitures,  amercements,   and  taxes    on    suits 
paid  to  county  in  any  court,  other  than  the  supreme  court,  shall  be  accounted 
trastee.  ^^^  ^^^j  p^^^j^  ^^  ^l^^^  county  trustees,  by  the  oflicer  receiving 

them,  for  the  purpose  of  defraying  the  costs  of  State  prosecu- 
tions and  the  contingent  expenses  of  the  county. 
Tax  on  indict-      4.  On  every  indictment,  or  civil  suit,  tried  or  otherwise  dis- 
™®"'^_^"'^g      posed  of  in  the  superior  and  county  courts,  the  parties  con- 
28,  s.'  6, 7.   '  '  victed  or  cast,  shall  pay  a  tax  of  one  dollar,  and  in  every  suit 

in  equity,  a  tax  of  two  dollars. 
Sheriff  to  col-      5.    The  sheriffs  of  the  respective  counties  shall  collect  and 
lect  and  pay     j-cccive   all  fiues,   amercements,    forfeited    recognizances,    and 

over  tines,  .  '  i-iii  i,  xr^i 

araercemonts,  penalties  imposed,  adjudged,  or  decreed  by  any  court  oi  the 
?8°'~8 '  ^'  "'  ^tate,  and  shall  pay  them  over  to  the  respective  county  trus- 
'  '  '  '  tees  or  wardens   entitled  to    receive   the   same,  within   three 

months  after  they  shall  be  received,  and  shall  return  a  tran- 
script, at  the  time  of  settlement  with  the  trustees,  which  shall 
contain  the  names  of  all  persons,  from  whom  fines,  forfeitures, 
and  amercements  shall  have  been  collected,  and  the  amount 
from  each  person  received. 
Clerk  to  render      6.    The  clerks  of  the   several  courts  shall,  annually,  on  or 
menTof^'fiues    before  the  first  day  of  January  in  every  year,  make  a  full  and 
&c.— R.  S.  c.'    complete  return  to  the  respective  county  trustees  of  all  such 
28,  s.  9,  taxes,  fines,  forfeitures,  and  amercements,  wliich  shall  have  been 

imposed,  adjudged,  or  decreed  in  the  preceding  year,  the 
names  of  the  persons  who  shall  have  paid  such  taxes,  and  of 
those  who  have  been  fined,  amerced,  or  adjudged  to  have  for- 
feited their  recognizance. 
Penalty  on  ci'k,  7.  If  any  clerk  of  the  superior  or  county  court,  or  any  clerk 
fuUingifpay "  an^l  master  in  equity,  or  any  sherilV,  shall  fail  or  neglect  to 


Chap.  28.]        county  kevenue  and  charges.'  141 

account  for,  and  pay  to  the  county  trustees  or  wardens  of  the  over  county 
poor  of  their  respective  counties,  any  taxes  on  suits,  or  any  c'lPslf  ^' 
iines,  forleitures,  and  amercements,  as  required  by  this  chapter,   '     '  '     ' 
or  shall  fail  to  make  the  returns  herein  specified,  he  shall  for- 
feit and  pay  five  hundred  dollars,  to  be  recovered,  in  the  name 
of  the  State,  by  the  county  trustee  for  the  use  of  the  county. 

8.    In   all  criminal   prosecutions  in  the  county  or  sui)erior  Co'ts  of  pro-^e- 
court,   when  the  defendant  shall  be  acquitted,  and  the  court  ™mrSer''^ 
shall  not  order  the  prosecutor  to  pay  the  costs ;  or  where  the  tain  cases.-R. 
defendant,  if  convicted,  shall  be  insolvent  and  unable  to  pay  ^-  "■  ^^'  '•  ^^• 
costs,   the    officer  entitled   to  fees  in  said  prosecutions,  shall 
render  to  the  county  court  an  accurate  fee  bill,  enuraeratino- 
the  costs  due  to  him;  and  the  county  court  shall  order  the 
county  trustee  to  pay  them.     Provided,  that  clerks  and  sheriffs 
shall   be   paid  half  their  fees  only,  except  in   prosecution  for 
capital  felonies,  or  for  forgery,  perjury,  and  conspiracy. 

J.    Witnesses,  summoned  or  recognized,  on   behalf  of  the  Witnesses  for 
btate,  to  attend  on  any  prosecution  in  the  superior  or  county  f'"'  ^^''f  P''''^ 
court,  where  the  defendant  is  insolvent,  or  by  law  shall  not  be  JhZ-±  S. 
bound  to  pay  the  same,  and  the  court  do  not  order  them  to  be  ''•  ^^'  '■  ^^■ 
paid  by  the  prosecutor,  shall  be  paid  by  the  county  in  which 
the  prosecution  was  commenced.     And  in  all  cases,  wherein 
witnesses  may  be  summoned  or  recognized  to  attend  any  su- 
perior or  county  court,  to  give  evidence  in  behalf  of  the  State, 
and  the  defendant  shall  be  discharged,  and  in  cases  where  the 
defendant  shall  break  jail  and  shall  not  afterwards  be  retaken, 
the  court  shall  order  the  witnesses  to  be  paid. 

10.  In  all  cases  where  the  county  is  liable  to  pay  costs,  that  County  where- 
county,  wherein  the  offence  shall  have  been  charo-ed  to  be  !" ,'''''  °''"™'=® 
committed,  shall  pay  them.  And  all  fines,  forfeiUires,  and  ^<^^^^iZ 
aniercernents  accruing  in  the  case,  shall  be  accounted  for  and  ""'«"'<'  l""'' 
paid  to  the  trustee  of  that  county.  28';'s7it       "' 

11.  The   county   court  shall   make   such  allowance  to  the  C'o- courts  may 
shenft,  clerk,  or  solicitor  of  the  county  for  extra  services,  as  IZlTiltS' 
they  may  think  proper   and  just,  which   shall  be  paid  by  the  "ervices.-R 
county  trustee  :  Provided,  that  in  making  such  allowances,  or  ^-  '=•  ''•  '•  "' 
in  allowing  any  other  claim  against  the  county,  a  majority  of 

the  justices  shall  be  present,  unless  otherwise  provided. 

12.  The  clerks  of  the  county  courts,  if  so  ordered  by  the  Claims,  &c. 
court  shall  number  all  claims,  orders,  and  certificates  that  may  l^^l'^'l, 
be  allowed  by  the  court  in  a  book  kept  for  that  purpose,  and  bSby  o""rk, 
they  shall  annually,  the  day  before  the  court  proceeds  to  lav '"'I  «/r, *■"''" 
a  county  tax  for  the  ensuing  year,  furnish  the  chairman  of  the  man  a™Si'^ 
court  with  a  copy  of  the  same  ;  they  likewise  shall  insert  the  Tn  ^-  '•  '^' 
ditterent  allowances,  agreeable  to  the  number,  in   the  tax  list "     ' 

with  which  the  clerks  supply  the  sheriffs  or  collectors,  in  order 
that  the  same  may  be  paid  according  to  their  number  and 
priority. 

13.  Any  clerk  of  the  county  court,  neglecting  to  perform  i>"-iitv  for  fail- 
any  part  ot  the  duty  enjoined  by  the  last  section,  shall  forfeit  "'Jfims  IT""' 
and  pay  the   sum  of  twenty  dollars  for  every  such  oflbnce, 


142  COU^'TY   REVENUE   AND    CHARGES.  [CnAP.    28. 

one  half  to  the  use  of  any  person  who  may  sue  for  the  same, 
His  fee  for  ser- the  other  half  for  the  county.  And  such  county  court  may 
28°^3  Ysf"  ^'  ^'  allow  the  clerk,  for  all  such  services,  annually,  any  sum  not 

exceeding  four  dollars. 
A  statement  of  14.  The  court  of  each  county,  at  the  first  session  after  the 
anTpai/ou't''  ^^^  ^^J  of  June  in  every  year,  shall  cause  the  proper  officer 
for  county  pur- to  publish  and  set  up  in  some  part  of  the  court  house,  an 
■  upYn 00° house!  account  of  the  moneys  received  the  preceding  year,  by  taxes 
—  R.  s.  c.  26,  or  otherwise;  stating  also  what  application  has  been  made 
^'    ■  of  the  same,  to  whom  paid,  and  what  claims  against  the  county 

remain  undischarged. 
Courts  to  lay       15.    The  several  county  courts,   a  majority  of  the  justices 
rors.— ^Sf  s"c.  being  present,  shall  have  power  to  provide  for  paying  the  jurors 
28,  s.  21.  of  the  county  a  sum  adequate  to  their  services,  which  shall 

not  be  less  than  fifty  cents,  nor  more  than  two  dollars  per  day, 
and  a  sum  equal  to  the  daily  allowance,  for  every  thirty  miles 
travelling  to  and  from  the  court ;  and  for  a  less  distance,  a 
proportionate  sum. 
Power  of  CO.         16.    The  county  court  is  invested  with  full  power  to  direct 
in"g  oVcounty^"  ^^^  application  of  all  moneys  arising  by  virtue  of  this  chapter, 
funds. —  R.  S.  for  the  purposes  herein  mentioned  ;  and  to  any  other  good  and 
c.  28,  s.  22.       necessary  purpose  for  the  use  of  the  county. 
Co.  court  may      17.    The  court  of  pleas  and  quarter-sessions  in  every  county, 
mi?t°ee'of  ''°"'  at  any  court  after  the  first  day  of  Augtist  in  every  year,  a 
fin.ance.  majority  of  the  justices  being  present,  if  deemed   expedient, 

may  appoint  three   persons  of  skill  and  probity  to  act  as  a 
committee  of  finance,  whose  duty  it  shall  be  to  examine  all 
the  records,  papers,  and  documents  which  have  relation  to  any 
county  moneys  in  the  offices  of  the  clerks  of  the  county  and 
superior  courts,  and  of  the  clerks  and  masters  in  equity,  and 
to  audit  and  settle  all  accounts  between  the  county  and  the 
sheriff,  county  trustee,   or   any  other  officer  or  commissioner, 
who  may  hold  any  moneys  belonging  to  the  county ;  and  the 
Their  duty  and  committee  are  authorized  to  require  each  of  said  clerks,  at  his 
c^is'l'.Ts.     *  office,  to  lay  before  them  for  inspection,  such  records,  docu- 
ments, and  papers  as  aforesaid,  and  to  require  the  sheriff,  county 
trustee,  and  other  officer  or  commissioner  of  the  county,  to 
meet  them  at  the  court  house  to  audit  and  settle  their  respec- 
tive accounts,  at  such  time  as  the  committee  may  designate. 
Com.  to  inves-      18.    It  shall  be  the  duty   of  said  committee  to  make  a  full 
tyfinan(res,°"iKi  investigation  of  all  the  financial  concerns  of  their  county,  and 
report  to  court,  to  return  a  fair  and  true  report  to  the  county  court  at  tiie  end 
of  each  financial  year,  setting  forth  a  full  statement  of  their 
investigation,   designating    therein   all   moneys  due   from  the 
county  to  individuals,  as  well  as  the  sums  due  by  individuals 
Pay  of  com-    to  the  county ;  and  each  member  of  the  committee  shall  re- 
^"^^■"24.    '  ceive  not  exceeding  two  dollars  per  day,  for  each  day  he  shall 

be  necessarily  employed,  to  be  paid  by  the  county  trustee. 
Anyofficerfail-      19.    If  any  clerk,  siierifl',  county   trustee,  or  other   officer  or 
terteu  days' no-  Commissioner,   who   may  hold   any  county  money,  shall  fail 
tice,  to  forfeit    duly  to  account  for  the  same,  the  committee  of  finance  shall 


Chap.  29.] 


COUNTY    TRUSTEE. 


143 


give  such  person-  ten  days  previous  notice,  in  writing,  of  the  ?m 
time  and  place  at  which  they  will  attend  to  make  a  settle-  '^'  ^' 
ment ;  and  every  officer  receiving  notice,  and  failing  to  make 
settlement,  as  required  by  this  chapter,  shall  forfeit  and  pay 
one  hundred  dollars,  to  be  sued  for  in  the  name  of  the  State, 
and  prosecuted  for  the  use  and  at  the  expense  of  the  county, 
unless  the  court  shall  release  the  officers  from  the  forfeiture. 


Sect.  1.  Power  of  taxation  constiM'umal,  1  Hawks,  408. 


CHAPTER    29. 


COUNTY  TRUSTEE. 


Section 

1.  County  h'ustees  appointed. 

2.  Vacancies  to  be  filled. 

3.  To  give  bond  and  take  oaths.  , 

4.  To  collect  all  moneys  due  the  county. 

5.  To  call  on  sheriffs,  clerks,  and  others 

having  county  moneys,  fdr  payment. 
On  failure,  summary  judgment  ren- 
dered against  them  and  sureties. 
Also  for  penalty  of  one  hundred  dol- 
lars. Trustee  failing  in  his  dutj' 
liable  for  the  money  as  if  he  had  col- 


Section 

lected  it,  and  a  penalty  of  one  hun- 
dred dollars. 

6.  To  settle  -with  sheriff  for  claims  as 

numbered. 

7.  Pay  allowed  county  trustee. 

8.  To  settle  with  courts  annually. 

9.  Further  penalty  of  ten  dollars  on  trus- 

tees for  neglect  of  duty. 
10.  Office  of  county  trustee  may  be  abol- 
ished.  Duties  then  devolved  on  sher- 
iff.    May  be  revived,  ioiies  quoties. 


1.  The  justices    of  the    several  county  courts,  a  majority  County  trus- 
being   present,  shall,    during   the    sitting    of  their   respective  ^"p'  "ppoi"ted. 
courts  to  be  held  next  after  the  first  day  of  January,  in  every  s.  i.'    '   '     ' 
year,  appoint,  by  vote  of  a  majority,  some  person  to  act  as 

trustee  for  the  county  for  one  year,  for  the  purposes  herein 
mentioned :  and  the  appointment  shall  be  entered  on  the 
records  of  the  court. 

2.  In  case  of  the  death,  disqualification,  neglect,  or  refusal  V.acancies  to  be 
to  act,  of  any  trustee  appointed  in   any  mode  prescribed  by  29 ''s'.T^' ^■°' 
this  chapter,  the  justices   may  appoint  another  to  fill  the  va- 
cancy until  the  next  annual  appointment,  under  the  rules  and 
regulations  before  prescribed. 

3.  The  person  appointed  trustee  shall  give  bond  with  good  To  give  bond 
security  for  the  faithful  discharge  of  his  duty,  in  such  sum  as  "'iS.'s^c.lg'^' 
the  court  may  think  sufficient  to  cover  all  moneys  which  may  s-  3. 

be  paid  to  him  for  the  use  of  the  county;  and  he  shall  take 
the  oaths  of  public  oflicers,  and  also  an  oath  of  oflice. 

4.  The  county  trustee  shall  demand,  sue   for,   and   receive  To  collect  all 
from  the  sheriff  of  the  county,  and  from  all  otlier  persons,  all  I?;™  m'-r.*° 
money  which  may  be  in  their  hands  due  and  payable  to  and  c.  2ii,"s.  i. 


144  COUNTY   TRUSTEE.  [ChAP.   29. 

for  the  use  of  the  county,  and  shall  apply  them  as  the  county 
court  may  direct. 
To  call  on  5.  The  county  trustee   shall    annually  call  on   the   sheriff, 

SQ  Its,  Clerks,         1,  ■,  ''  iii  /.i  r*  y  . 

andothershav- Clerk  and  master,  and  clerks  ot  the  courts  of  his  county,  and 

mone°""tbr      ^^^  Other  persons  bound  to  account  with  him,  for  payment  of 

pay"!^™!.*"^      all  moneys  which  may  be  in  their  hands ;  and  if  any  of  said 

summa'?'^\(ic-  °®'^^'^'®  ^'^^^^  f^i^  to  account  for  and  pay  the  same,  the  trustee, 

ment  rendered  at  the  first  court  held  for  his  county  after  the  first  day  of  Janu- 

andsuretier     ^^'^  ^"    every   year,    shall    move    for  judgment    against  such 

Also  for  peiiai-  delinquent  officer  and  his  sureties,  ten  days  notice  having  been 

tyof^ioo.        jjreviously  given  to  them;  and  the  court  shall  thereupon  enter 

judgment  and  award  execution  against  such  officer  and  his 

sureties,  for  the  full  amount  of  the  public  money  due  from  such 

delinquent  officer;  and  every  sheriff,   clerk   and   master,  and 

clerk  aforesaid,  against  whom  judgment  is  so  rendered,  over 

and  above  all  arrearages,  shall  forfeit  and  pay  the  sum  of  one 

hundred  dollars,  to  be  recovered  at  the  same  time,  for  the  use 

hi™is''dut'^''iia°  °^  *^'^^  county.     And  if  any  trustee  shall  fail  to  comply  with 

We  for  the^'  '''  his  duties  as  prescribed  in  this  section,  he  shall  be  held  liable, 

had  coiirotld'"^  "°*  only  for  all  the  moneys  which  such  delinquent  officer  ought 

it,  and  a  penal-  to  have  accounted  for  and  paid  on  demand,  and  which  by  due 

tv  of  §100.— R.  diligence  might  have  been  collected,  but  shall  moreover  forfeit 

'  ■   ■     and  pay  a  penalty  of  one   hundred  dollars,  to  be  recovered  at 

the  same  time,  for  the  use  of  the  county. 

To  settle  with        6.  The  trustee  shall   settle  with  the   sheriff  or  collector  of 

claims  as  num- public  taxes,  only  according  as  claims  are  numbered,  begin- 

bered.— R.  S.    ning  with  the  lowest  number ;  and  where  there  is  no  trustee, 

'"  '  ■   ■        the  court  shall  settle  with  their  sheriff,  or  collector  of  public 

taxes,  in  like  manner. 
Pay  allowed  CO.      7.  The  court  of  pleas   and  quarter-sessions  shall   allow  the 
c!^wTs^-        trustee  of  the  county  reasonable  pay  for  all  such  services,  as 

have  not  specific  fees  annexed  to  them. 
To  settle  with       8.  At  the  first  court  in  each  county  which  shall  be  held  after 
cour^annua-  the  first  of  June,  in  every  year,  the  trustee  shall   make  settle- 
29,  s.  9.  ment  with  the  court,  in  which  he  shall  fender  an  account  of 

his.  receipts  and  expenditures,  under  the  penalty  of  four  hun- 
dred dollars,  to  be  recovered  in  the  name  of  the  State,  for  the 
use  of  the  county, 
f "of siom""'       ^'  ^^  ^"y  trustee  shall  neglect  to  do  and  perform  any  one  of 
trustees  for  ne- the   several  duties   herein   enjoined,   for  breach   of  which   no 
l''^S.'c.'^29"s^  i7  P^'^i^lty  is   specially  given,  he  shall  forfeit  and  pay  for  every 
'  such  breach  of  duty  ten  dollars,  to  be  recovered  in  the  name 
of  the  State,  for  the  use  of  the  county. 
trultee''may  be      ^^'  Whenever  a  majority  of  the  justices  of  the  peace  of  any 
abolished.        county  shall  deem  it  advisable,  they  may  abolish  the  office  of 
county  ti-ustee ;  provided  notice  thereof  may  liave  been  given 
by  advertisement  in  ])nrsuance  of  an  order  of  the  county  court, 
Duties  then      made  at  the  preceding  term.     It  shall  then  be  the  duty  of  the 
sSff.°'^°°      sheriff  to  act  as  county  trustee,  and  he  shall  perform  all  the 
duties  of  the  oHice,  in   the  same   manner  and  under  tiie  same 
penalties  as  are  provided  in   regard  to   county  trustees,  and 


Chap.  30.]         court  house,  prisons,  etc.  I45 

shall  receive  a  like  compensation:  Provided,  however,  that  the  Duties  then  de- 
office  of  county  trustee  may  be  revived  by  the  vote  of  a  ma-  ^'^'""1  °"  sh'ff. 
jority  of  all  the  justices  of  the  county,  whenever  and  as  often  ^ved^l'J^ 
as  the  same  may  have  been  abolished;  and  such  revival  of  the  «"<""«•—«•  S. 
office,  as  well  as  the  abolishment  thereof,  shall  be  recorded.        1862%';  V"~ 


Sect.  3.  i  Ire.  140. 
Sect.  i.  9  Ire.  496. 


CHAPTER    30. 

COURT  HOUSES,  PRISONS,  ETC. 


Section 

5.  Vacancies  filled. 

6.  Treasurer  to  settle  his  accounts  an- 

nually. On  failure  to  settle  or  pay, 
judgment  on  motion  against  hira  and 
sureties,  and  for  a  penalty  of  one 
hundred  dollars. 

7.  Treasurer     recommending 

what  to  be  done. 


repairs. 


Section 

1.  Court  house,  jail,  pillory  and  stocks 

to  be  built  and  kept  in  repair  by 
county  court,  who  shall  lay  a  tax 
therefor. 

2.  Jails  to  have  four  separate  apartments. 

3.  Visited  at  each  court  by  grand-jury. 

4.  Treasurer  of  public  buildings  appoint- 

ed by  county  court.  His  duty  and 
bond.    Compensation. 

1.  There  shall  be  kept  and  maintained  in  good  and  suffi-  Courthouses, 
cient  repair,  in  every  county  in  the  State,  a  court  house,  com-  J'"'"-  P'"°'"y 
moil  jail,  pillory  and  stocks,  at  the  expense  of  the  county,  be  bun?  and 
wherein  the  same  are  situated ;  and  the  courts  of  the  several  '^''P'  ™  ™P'"'" 
counties  respectively,  a  majority  of  the  justices  being  present,  ^w,o  sLaiUay  a 
shall  lay  and  collect  taxes,  from  year  to  year  as  long  as   may  tf^  therefor.— 
be  necessary,  for  the  purpose  of  building,  repairing,  and  f^^..  ^- ^- <=•  ^O- s- 1- 
nishing  their  several  court  houses,  jails,  pillories  and  stocks,  in 

such  manner  as  they  shall  think  proper;  and  from  time  to  time 
shall  order  and  establish  such  rules  and  regulations  for  the 
preservation  of  the  court  houses,  and  for  the  government  and 
management  of  the  prisons,  as  may  be  conducive  to  the  inter- 
ests of  the  public,  and  the  security  and  comfort  of  the  persons 
confined. 

2.  The  common  jails  of  the  several  counties  shall  be  pro-  Jails  to  have 
vided  with  at  least  four  separate  comfortable  apartments,  one  apartmrnte- 
for  the    confinement  of  white   male  criminals,  one  for  white  E- S.  c.  so,  s.  2. 
female  criminals,  one  for  debtors,  and  one  other  for  neo-roes. 

3.  The  grand-jury,  at  every  court  held  for  their  county,  shall  Visited  at  each 
visit  the  jail,  examine  the  same,  and  especially  the  apartments  ?™rt_by  g™nd- 
in  which  prisoners  shall  be  confined  ;  and  they  shall  report  to  io/I'.  3 

the  court  the  condition  of  the  jail  and  of  the  prisoners  con- 
fined therein,  and  also  the  manner  in  which  the  jailor  has  dis- 
charged his  duties. 

13 


146  COURT   HOUSE,   PRISONS,   ETC.  [ChAP.  30. 

Treiis'i- of  pub.  4.  The  several  county  courts,  a  majority  of  the  justices 
point'ed\')''co.  being  present,  may  in  their  discretion,  annually,  at  the  first 
court.  court  which  shall  be  held  after  the  first  day  of  January  in  every 

boiiii.  year,  apponit  a   suitable  person  to  act  as  treasurer  of  pubuc 

buildings,  who,  after  having  given  bond  with  satisfactory  se- 
curity payable  to  the  State  of  North  Carolina,  in  such  sum  as 
may  be  required,  for  the  faithful  discharge  of  the  trust  reposed 
in  him,  shall  superintend  the  public  buildings,  and  from  time 
to  time  report  their  state  and  condition  ;  shall  recommend 
alterations,  repairs,  or  improvements,  together  with  the  sums 
requisite  for  making  them  ;  shall  call  to  account,  by  suit  if 
necessary,  and  settle  with,  all  former  commissioners  who  may 
have  received  county  moneys  for  such  purposes  ;  shall  hear  the 
complaints  of  persons  confined,  respecting  their  diet  and  treat- 
ment; shall  examine  into  the  conduct  and  character  of  the 
jailor,  and  make  information  thereof  to  the  court  or  grand-jury 
of  the  county,  as  circumstances  may  require;  shall  apply  for 
and  obtain  from  the  clerk  all  papers  and  documents,  properly 
attested,  which  may  be  necessary  for  the  collection  of  the  taxes 
laid  by  the  court;  shall  see  that  the  same  be  collected,  ac- 
counted for,  and  applied,  according  to  the  intent  of  this  chap- 

R°S?c.°3of°'4.  *^'"-     -^"^  ^^^^^'  ^^^'^  '"'^  °^'^'^  during  one  year ;  and,  as  a  com- 
pensation for  his  services,  shall  be  entitled  to  such  sum  as  the 
court  may  allow  him. 
Vacancies  fill-      5_    Whenever  the  office  of  treasurer  of  public  buildings  shall 
30,'s.  s'.   '        become  vacant,  in  any  way  whatever,  the  county  court,  a  ma- 
jority of  the  justices  being  present,  may  fill  the  same,  until 
the  annual  term  of  appointment. 
Trcas'r  to  set-       6.    Treasurers   of  public  buildings   are  hereby  expressly  re- 
aniiuluy?°"°    quircd,  at  the  term  of  their  election,  and  before  the  election,  to 
On  failure  to     settle  their  accounts  with  the  court,  by  exhibiting  a  fair  ac- 
.)udg^t''on''mi-   count  of  their  receipts  and  expenditures,  setting  fortli  the  mon- 
tion  against      eys  received,  and   at  what  time  ;  the  sums  exiiended,  to  whom 

liim  and  sure-  •  i    r  i      ,  i      j       i     i  ;•  i    ,       ,  .    ,      . 

ties,  and  for  a  paid,  lor  What  u.se  and  at  what  time;  a  complete  transcript  of 
y^'il'ityof^ioo-  which  account  shall  be  posted  up  in  the  court  house  for  public 
'-   'inspection:    And  if  any  treasurer  of  public  buildings  shall  fail 
to  settle,  as  above  directed,  or  to   pay  the  balance  which  may 
appear  to  be  due  from  him  on   such  settlement,  his  successor, 
on  giving  him  and  his  sureties  ten  days  previous  notice,  shall, 
on   motion   in  any  court  of  his  county,  be   entitled  to  have 
judgment  entered   against  him  and  his   sureties  for  all  moneys 
received  by  him,  witli  interest  from  the   day  of  receiving  the 
same,  and  the  further  sum,  as  a  penalty,  of  one   hundred  dol- 
lars, for  the  use  of  the  county. 
incmUngK-"'"      .''•    ^^*'e"  ^^e  treasurer,  in  his  report,  shall  recommend  alter- 
uair,s  what  to   atioiis,  repairs,  and  improvements,  the  court,  being  satisfied  of 
J,"'3p"f T'''- ^"  their  utility,  may  appoint  one  or  more  commissioners,  in  con- 
junction witii  the  treasurer,  to  contract  for  carrying  t  lie  same 
into  ed'ect ;  but,  such  contract  being  concluded,  the  powers  of 
the  commissioners  shall  cease  ;  and  the  moneys  payable  there- 


Chap.  31.]       courts,  county  and  superior. 

on  shall  be  advanced  by  the  treasurer,  who  shall  be  solely  re- 
sponsible and  accountable  to  the  court  for  the  sufficiency  of 
the  work,  and  the  disbursement  of  the  money. 


Sect.  1.   4  Huwks,  194. 


147 


CHAPTER    31. 


COURTS,  COUNTY  AND  SUPERIOR. 


Section 

County  Courts. 

1.  Justices  of  the  peace,  judges  of  courts 

of  pleas  and  quarter-sessions.  At 
TV-hat  time  courts  to  be  held  in  the 
several  counties. 

2.  Court  may  sit  six  days;  unfinished 

business  continued. 

3.  One  justice  may  adjourn  court  from 

(lay  to  day,  for  three  days,  &c. 

4.  Court   nor  process    discontinued    by 

failure  to  sit,  or  by  change  of  time 
of  term. 

5.  Three  justices  to  hold  court.    .Juris- 

diction of. 

6.  iMay  appoint  a  chairman;  also  a  spe- 

cial court,  &o.     Their  pay. 

7.  Court  may  purchase  law-books.  Pen- 

alty on  clerk  for  abusing  them. 

Superior  Courts. 

8.  A  superior  court  established  in  each 

county. 

9.  The  St.ate  divided  into  seven  judicial 

circuits.  Counties  composing,  and 
times  of  holding  courts  in,  first  cir- 
cuit. 

10.  In  second  circuit. 

11.  In  third  circuit. 

12.  In  fourth  circuit. 

13.  In  fifth  circuit.    Anson  may  continue 

two  weeks  in  the  fall.  New  Hano- 
ver may  continue  two  weeks. 

14.  In  sixth  circuit. 

15.  In  seventh  circuit. 

16.  Superior  court  may  continue  longer 

than  a  week  in  capital  eases. 

17.  Held  by  judges.    Their  powers  and 

jurisdiction. 

18.  Judges  appointed  from  State  at  large, 

but  to  reside  in  a  particular  circuit. 
Shall  take  oaths. 

19.  Oaths  subscribed  and  returned  to  scc- 


Sectiom 

retary  of  State.  Penalty  for  acting 
without  taking  oaths. 

20.  Judges  to  ride  according  to  present 

arrangement  of  circuits.  Ridings  to 
be  published.   May  exchange  courts. 

21.  Judge  not  attending  first  d.ay  of  term, 

sheriff  to  adjourn  daily  till  third 
day.  Recognizances,  &c.,  to  stand 
continued  till  next  term. 

22.  Special  term  of  superior  court  ap- 

pointed by  presiding  judge.  Gov- 
ernor to  be  notified,  and  .appoint  a 
judge.  Clerk  to  publish  the  same. 
Court  ra.ay  continue  till  a  trial  begun 
is  finished.  P.ay  of  judge,  holding 
term  two  weeks. 

23.  Judges  of  special  terms  to  have  the 

powers  of  other  judges.  No  process, 
except  subpoenas,  returnable  thereto. 

24.  All  persons  bound  to  attend,  as  at 

regular  terms. 

Jury. 

25.  Jury  list  to  be  made  from  taxable 

freeholders,  only  of  persons  well 
qualified.  To  continue  for,  and  be 
examined  at  the  end  of  every  two 
years, 

26.  Jury  list  kept  in  boxes;    number  to 

be  drawn  for  superior  courts ;  how 
drawn.  For  county  courts,  and  how 
drawn.  Persons  having  suits  in  court 
not  to  be  dr.awn;  nor  justices  for  the 
county  courts.  Jurors  for  special 
terms,  how  provided. 

27.  County  court  failing  to  draw  jurors, 
sherifi;  clerk,  and  three  justices  may 
draw  them. 

2S.  Jury,  at  two  terms  of  county  court, 
may  be  dispensed  with. 

29.  Jurors  to  be  summoned,  an<I  to  attend 


148 


COURTS,   COUNTY   AND    SUPERIOR.        [ChAP.    31. 


Section 

till  discharged  by  court.  Tales  ju- 
rors maj'  be  summoned. 

30.  Jurors  not  attending  fined  twenty  dol- 

lars. To  have  till  next  term  to  make 
excuse.  Tales  jurors  not  attending, 
fined  two  dollars. 

31.  Exempt  from  service  of  civil  process. 

32.  Ministers   of    the   gospel  and  others 

exempt  from  serving  as  jurors. 
S3.  Grand-jury,  how  drawn. 

34.  Petit-jurors  sworn  in  civil  cases.    In 

State  cases  not  capital,  how.  Right 
of  challenge  not  affected  thereby. 

35.  Their  names  to  be  called  over  in  the 

hearing  of  parties  before  impan- 
elled. Four  may  be  challenged  in 
civil  cases. 

36.  Constable     attending    juries    to    be 

sworn,  for  what  purpose. 

Practice,  Pleas,  and  Process. 
87.  Venue  of  actions.  ^Vhen  plaintiff  re- 
sides out  of  State.  When  plaintiff 
and  defendant  reside  in  different 
counties.  Defendant  not  to  be  sued 
in  superior  court  out  of  his  county 
for  less  than  one  hundred  dollars. 
Actions  otherwise  brought  may  be 
abated. 

38.  Not  to  be  sued  in  any  court  for  less 

than  one  hundred  dollars  due  by 
bond,  &c.  Or  for  any  penalty,  jus- 
tice's judgment  under  one  hundred 
dollars,  or  balance  of  bond,  &c.,  of 
less  amount.  Nor  for  unliquidated 
demands  of  sixty  dollars,  and  under. 
Suits  otherwise  brought  to  be  abated : 
Or  if  the  matter  appear,  dismissed 
on  motion.     Penal  bonds  excepted. 

39.  The  day  of  issuing  process  to  be  noted 

thereon;  sheriff  to  indorse  day  of 
receiving  and  executing  it. 

40.  Security  to  be  given  before  the  issue 

of  process,  or  suit  may  be  dismissed. 
Exception  as  to  persons  suing  m 
Jorma  pauperis. 

41.  Names  of  parties,  their  sureties  and 

the  bail  to  bo  docketed  by  clerk  in  a 
book. 

42.  Clerks  issuing  process  without  secu- 

rity to  forfeit  two  hundred  dollars. 

43.  Poor  persons  may  sue  in  forma  pau- 

peris.   Counsel  to  be  assigned. 

44.  Writs  in  the  same  suit  may  issue  to 

several  counties  at  the  same  time. 

45.  Real  plaintiff  in  ejectment  to  give  a 

prosecution  bond. 

46.  Defendant  in  tjectment  to  give  bail- 

bond. 


Section 

47.  Plaintiff  failing  to  give  securitj',  suit 
dismissed.  Defendant  to  give  bail. 
Sec,  or  shall  not  plead. 

46.  If  plaintiff  in  ejectment  make  affida- 
vit that  defendant  entered  as  his 
tenant,  &,c.,  he  shall  not  plead  till 
ho  makes  counter  affidavit,  and  gives 
bond  for  damages  and  costs.  On  the 
trial,  juiy  shall  find  the  facts;  if  for 
plaintiff,  shall  assess  damages  for 
waste  and  occupation. 

49.  Plea^ffis  darrein  that  the  plaintiff  has 

entered  into  possession,  not  to  be  re- 
ceived without  affidavit  and  pay- 
ment of  costs.  And  if  bond  be  given, 
as  in  above  section,  jury  to  assess 
damages  for  occupation  and  waste. 

50.  Writs   and   civil    process,  when   re- 

turned. How  long  before  court  to 
be  executed. 

51.  Sheriff  returning  defendant  in  jail, 

plaintiff  may  enter  his  appearance, 
&c. 

52.  Or  that  the  defendant  is  not  to  be 

found,  plaintiff  may  issue  alias  or 
attachment.  On  failure  of  defend- 
ant to  appear,  judgment  by  default 
may  be  entered.  Estate  taken  on 
judicial  attachment,  and  not  replev- 
ied, sold  on  final  judgment. 

53.  When  sheriff  returns  defendant  an  in- 

habitant of  another  county,  aJias  to 
issue  thereto. 

54.  Process  not  to  be  executed  on  Sunday, 

days  of  election,  or  muster;  nor  on 
jurors,  or  witnesses. 

55.  When  there  is  no  officer,  or  he  will 

uot  execute  process,  on  affidavit  the 
clerk  shall  direct  process  to  tho 
sheriff  of  adjoining  county. 

66.  Sheriff  executing  process  out  of  his 

county  to  have  extra  pay. 

Rules  of  Court. 

67.  (1.)  Declaration  to  bo    filed    within 

three  first  days  of  term,  or  suit  dis- 
missed. 

(2.)  Defendant  to  appear,  aud  plead 
or  demur  at  tho  same  terra.  When 
special  pleading  is  required,  time 
may  be  enlarged.  Writ  of  inquiry, 
in  certain  cases,  executed  at  the 
rendition  of  judgment. 

(3.)  Plaintiff  to  reply  or  demur  at  the 
same  term,  and  pleadings  to  be  com- 
pleted, unless,  &c. 

(4.)  Time  may  be  allowed  to  argue 
demurrer,  &c. 


Chap.  31.]       courts,  county  anb  superior. 


149 


Section 

(5.)  Pnrties  may  appear  in  their  own 
suits.  &c. 

(6.)  Proceedings  of  court  to  be  enter- 
ed by  clerk  in  a  well-bound  book. 
(7.)  Jury  causes  to  be  first  tried. 
(8.)  Motions  in  arrest  of  judgment  to 
be  argued,  when. 
(9.)  Argument  causes,  — when  to  be 
heard. 
(10.)  Plea  in  abatement  to  be  received, 

only  on  affidavit  or  proof. 
(11.)  When   overruled,   plaintiff  shall 
recover  costs.    As  many  pleas    as 
necessary  m.iy  be  pleaded. 
(12.)  Plea  since  the  last  oontinu.ancc, 

no  waiver  of  former  pleas. 
(13.)  Issues  tried  at  the  term  next  af- 
ter made  up.    No  cause  continued 
but  by  consent,  or  on  affidavit. 
(14.)  Court  may  order  the  party  con- 
tinuing to  pay  costs. 
(15.)  One  attorney  only  to  speak,  un- 
less allowed  by  court.     May  argue 
to  the  jury  both  law  and  fact. 
( 16. )  Power  of  attorney  to  be  produced 
and  filed  by  attorney,  if  required. 
If  necessary  to  retain  the    power, 
what  to  be  done. 
58.  In  actions  on  penal  bonds,  &c.,  plain- 
tiff may  assign  several  breaches.    If 
judgment  be  given  for  plaintiff  on 
demurrer,    &c.,    he    may    suggest 
breaches.    Defendant  may  pay  dam- 
ages and  costs  into  court,  and  then 
no  e.TCcution  shall  issue.    Judgment 
shall    be    a    security    for    further 
breaches. 
69.  Rules  for  summoning  witnesses.  Sub- 
poena for  witnesses,  how  to  issue. 
Subpoena  returnable  immediately,  to 
issue  in  term  time  only.     Subpoena 
issuing  in  vacation,  how  served. 

60.  Witnesses  to  attend  from  term  to  term 

till  discharged.  Penalty  for  not  at- 
tending. In  civil  cases.  In  crimi- 
nal cases. 

61.  Entitled  to  pay,  if  they  attend  after 

the  suit  is  settled  in  vacation,  unless 
notified. 

62.  No  execution  to  issue  against  default- 

ing witness  until  after  scire  facias. 

Depositions. 

63.  Depositions    may    be    taken    before 

issue.  If  there  be  no  general  nor 
special  rule,  then  under  the  rules 
prescribed.  Rules.  To  be  taken 
under  sealed  commission,  if  taken 


Section 

out  of  the  county.  Commissioner 
not  to  be  kin  to  either  party.  Clerk 
to  pass  on  depositions.  Deposition 
of  governor,  &c.,  to  be  read.  May 
also  be  taken  under  special  order. 
Adverse  party  shall  be  allowed  to 
cross-3xamine. 

64.  All  commissioners,  arbitrators,  refers 
ees,  &c..  empowered  to  summon  wit- 
nesses to  take  their  depositions. 
Also  clerks  of  courts. 
Witness,  refusing  to  give  his  deposi- 
tions committed  to  jail.  Commit- 
titur  to  recite  the  authority,  &c. 


J.  Sheriff  to  execute  subpoena  for  wit- 
nesses summoned  before  commis- 
sioner, &c.,  under  penalties.  De- 
faults of  witnesses  to  be  noted  by 
commissioner.  If  made  before  a 
commissioner  appointed  out  of  the 
State,  witness  to  pay  penalty  of  fifty 
dollars.  What  to  be  evidence  of  de- 
feult. 

I.  Default  before  commissioner  acting 
under  authority  from  this  State,  cer° 
tified,  to  court.  Proceedings  thereon. 

■.  Witnesses  attending  jury  of  view  or 
commissioner,  &c.  paid  as  for  af> 
tending  court. 

.  Subpoenas  to  attend  commissioners 
and  others,  in  certain  cases  issued 
by  clerk. 

.  Witnesses  refusing  to  depose  in  court, 
to  be  imprisoned. 

.  During  attendance  exempt  from  ser- 
vice of  civil  process. 

.  Fees  of  witness  for  attendance  at 
court. 

.  After  removal  of  a  cause,  subpoenas 
and  commission  may  issue  from  either 
court. 
Witness  to  prove  his  attendance  at 
each  court.  May  recover  pay  for 
his  attendance. 
On  final  judgment,  tickets  to  be  filed 
with  clerk  and  taxed  with  costs. 
Party  cast  to  pay  but  for  two  wit- 
nesses to  the  same  fact. 


75.  Party  recovering  judgment  shall  re- 

cover costs,   unless  otherwise   pro- 
vided. 

76.  Costs  of  petitions  paid  as  court  may 

decree. 

77.  Defendant  may.  In  certain  cases,  plead 


13* 


150 


COURTS,  COUNTY  AND  SUPERIOR.    [ChAP.  31. 


Section 

set-ofiF,  or  give  it  in  evidence  under 
general  issue  upon  notice,  &c. 

78.  In  suits   for   slander   and   assault,   if 

damages  be  under  four  dollars,  costs 
to  be  tbe  same. 

79.  In  trespass  q.  c.f.,  defendant  may  dis- 

claim and  plead  tender,  &o.  in  bar. 

80.  In  trespass,  &c.  against  several,  all 

acquitted  shall  recover  full  costs, 
unless  the  judge  certifies,  &c. 

81.  When  a  subpcena  duces  tecum  may  is- 

sue. 

82.  Court  may  order  parties  to  produce 

books  or  papers.  Plaintiff  failing, 
to  be  nonsuited.  Defendant  failing, 
judgment  against  him. 

83.  Indorsee    may    sue    maker    and    in- 

dorser,  jointly  or  severally.  And 
their  executors  and  administrators. 

84.  On  joint  obligations,  &c.  one  or  more 

may  be  sued. 

85.  Joint  obligations  shall  sur\'ive  against 

executors,  tfcc. 

86.  Judgment,  how  entei'ed  against  execu- 

tors, &c.  and  sunuving  obligors. 

87.  Several  actions  on  same  joint  contract 

to  be  consolidated.  One  attorney's 
fee  only  taxed. 

88.  Judgment  bonds  void  as  to  power  to 

enter  judgment. 
69.  Executions  from  county  courts  may 
.    issue  to  any  county. 

90.  Interest  on   contracts,  except    penal 

bonds,  and  on  all  judgments.  Jury 
to  distinguish  principal  from  interest. 

91.  Ascertained  in  judgments  final  by  de- 

fault, by  dork. 

92.  Petitions  filed  in  vacation.    Capias  to 

issue  upon  affidavit  of  amount  of 
demand. 

93.  Publication  to  be  made  for  non-resi- 

dent defendants  in  cases  of  petition. 
Decree  pro  confesso  against  non-resi- 
dent to  bind  as  in  equity. 

94.  Court  may  order  the  clerk  to  audit 

and  settle  accounts. 

95.  Depositions  in  cases  of  petition. 

96.  Fees  of  clerk  same  as  in  equity. 

97.  Infants  m.ay  sue  by  next  friend. 

98.  Bill  of  exceptions  tendered  by  either 

party.    Judge  to  sign  and  seal  it. 

99.  Actions  of  account  allowed  against 

executors  and  administrators  of 
guardians,  £cc. 
100.  If  defendant  in  a  penal  suit  plead 
former  judgment,  plaintiff  may  re- 
ply fraud.  Release  of  the  action 
void.  Defendant  pleading  falsely, 
indictable. 


Section 

101.  Payment  or  satisfaction  maybe  plead- 

ed in  suits  on  bond  and  judgment. 
Also  payment  or  satisfaction  after 
the  day  of  paying,  in  suits  on  bonds 
conditioned  to  bo  discharged  by  a 
less  sum. 

102.  In  suits  on  penal  bonds  the  sum  due, 

interest,  and  costs  being  brought  into 
court,  shall  discharge  penalty. 

103.  Judgments  of  court  to  stand  till  re- 

versed. 

104.  Upon  appeal  or  recordari  of  defendant 

from  justice's  judgment,  court  may 
compel  plaintiff  to  secure  costs. 

105.  Appeals  from  a  justice  to  be  tried  first 

term  of  court.  Judgment  against 
party  cast  and  his  sureties.  How  to 
obtain  judgment  in  case  of  default. 

106.  If  plaintiff  appeal  and  shall  not  recover 

a  greater  sum,  he  shall  not  recover 
costs. 

107.  Appeals  from  county  to  superior  court, 

how  tried. 
IDS.  Leap-year  day,  how  counted. 

109.  Execution  not  to  issue  on  judgment 

after  a  year  and  a  day,  unless  re- 
vived. 

110.  Xonsuit  not  allowed  after  verdict. 

111.  Pai-ty    in    execution  not  to  be  dis- 

charged on  habeas  corpus. 

112.  Death  of  a  party  between  verdict  and 

judgment,  not  to  be  error,  if,  &c. 

113.  Administrator  de  bonis  mm  may  have 

execution  on  judgment  got  by  former 
administrator. 

114.  Accounts  may  be  taken  in  certain  ac- 

tions against  executors,  administra- 
tors, guardians,  sheriffs,  and  other 
officers.  To  be  stated  as  in  equity. 
Pay  to  commissioners. 

115.  Causes   in  superior  courts    may  be 

removed  on  affidavit,  to  adjoining 
county  :  Who,  in  case  of  slaves,  to 
make  affidavit.  Reasons  for  re- 
moval to  be  set  forth. 

116.  Removed    twice   only.      On    second 

moval  reasons  to  be  stated  in  detul. 

117.  Parties  by  consent  may  remove  suits 

to  convenient  county. 

118.  On  removal,  transcript,    depositions, 

&c.  to  be  sent. 

119.  Surveys  may  be  ordered  in  cases  of 

disputed  boundary.  How  and  by 
whom  made.  Charges  for  surveys 
to  be  taxed  as  costs. 

120.  Seal  of  court  not  put  to  process,  when. 

121.  Notices    in    legal    proceedings  to   be 

served  by  sheriff.  How  served.  Re* 
turn  evidence  of  service.   Whenex*- 


Chap.  31.]       courts,  counts  and  superior. 


151 


Section 

cuted  to  be  returned  to  party.  When 
sheriff  interested,  coroner  to  serve 
and  return  them. 

122.  Penalty  on  officer  for  failing  to  serve 

notices  or  making  false  return. 

123.  Return  of  sheriff  on  scire  facias  evi- 

dence of  service. 

124.  Defendants  may  show  they  are  sure- 

ties, and  jury  or  justice  to  find  the 
fact. 

125.  Property  of  principal  to  be  first  levied 

on  and  sold. 


Section 

126.  Judgment  for  costs  against  the  plain- 

tiff and  sureties,  on  failing  in  suit. 

127.  After  judgment,  defendant  may  pay 

the  money  to  the  clerk. 

128.  Clerk  to  pay  it  to  the  party  entitled. 

129.  Speedy  collection  of  proceeds  of  judi- 

cial sales  by  motion. 

130.  Judge,  how  to  deliver  his  charge  to 

the  jury. 

131.  Quakers  may  wear  hats  in  court. 


r.lpi"/™^^"'*'"'!'  °^  ^^■''  P^^"^^  '''^'^  be  judges  of  the  courts  of  Justices  of  the 

pleas  and  quarter-sessions  of  the  several  counties,  for  which  f^'™ '"  "" 
they  are  appointed   and  have  all  the  powers  incident  to  such  i^t^^lTaT" 
a  junsdiction.     baid  courts  of  pleas  and  quarter-sessions,  shall  <)."""=r-'^«- 
be^heW  for  their  respective  counties  on  the  days  following' to  '"'" 

^^7ulT^U.'^'l^'"\^^''''t7r''^'''  ^°"^''^   Monday  in  Feb- At  what  time 
luary,  May,  August,  and  November.  courts  to  be 

cemher'  ^''^  ^^"'^"^  '"  ^'^^'''''  ■^""^'  ^^Ptember,  and  De-  "^^Z^^ 
cemoer.  E.  s.c.3i,s.  i. 

Anson    second  Monday  in  January,  April,  July,  and  October 
vember  '^  ^^  '"  ^''''""^'   ^^"^'   ^"^"^^'   ^"^  No- 

Beaufort    third  Monday  in  March  and  September,  and  on  the 
first  Monday  m  June  and  December 

'vember°"'^  Monday  in  February,  May,  August,  and  No- 
Bladen,  first  Monday  in  February,  May,  August,  and  Novem- 

^™em1er'  ^''^  ^°"'^''^  "'  ^'^''''^'  "^^"^'  September,  and  De- 
Buncombe,  second  Monday  after  fourth  Monday  in  March 

June,  September,  and  December  Jviarcn, 

Burke,  eighth  Monday  after  fourth  Monday  in   March    June 

September,  and  December.  ^  '  ' 

Cabarrus,  third  Monday  in  January,  Aoril    Tnlv    nn.l  n.f  i. 
Caldwell,  sixth  Monda'y  after  fourfh  Xndai'fn  Marc^Jmi;- 

September,  and  December.  cii^",  June, 

^"'cetber.''""'^  '^^""'^"^  "'  ^^^''^'  "^""''  S^Ptember,  and  De- 

^'vember.'''''^  ^""'^"^  "'  ^'^'""^'y'  ^""^^  ^"g"^*'  «"d  No- 
Caswell    first  Monday  after  fourth   Monday  in   March,  June 
September,  and  December.  '  ' 

Catawba   third  Monday  in  January  and  July,  and  second  Mon- 
day alter  fourth  Monday  in  March  and  Septeml"r 
yember!""'^  ^°"^"^"^  ^'^'^■^"^^■^'  ^f^^'  August,  and  No- 
Cherokee,  first   Monday  in  March   and    September,  and  first 
Monday  in  December  and  June.  ' 


152  COURTS,   COUNTY   AND    SUPERIOR.         [ChaP.    31. 

Chowan,  first   Monday  in  February,  May,  August,  and  No- 
vember. 
Cleavland,  eles-enth  INIonday  after  the  fourth  Monday  in  March, 

June,  September,  and  December. 
Columbus,  second   Monday  in  February,  May,  August,  and 

November. 
Craven,  second  Monday  in  March,  June,  September,  and  De- 
cember. 
Cumberland,  first  Monday  in   March,  June,  September,  and 

December. 
Currituck,  the  last  Monday  in   February,  May,  August,  and 

November. 
Davidson,  second  jNIonday  in  February,  May,  August,  and  No- 
vember. 
Davie,  fourth   Monday  in  February,  May,  August,  and  No- 
vember. 
Duplin,  third  Monday  in  January,  April,  July,  and  October. 
Edgcombe,  fourth  Monday  in  February,   May,   August,  and 

November. 
Forsyth,  third  Monday  in  March,  June,  September,  and  De- 
cember. 
Franklin,  second  Monday  in    March,  June,   September,   and 

December. 
Gaston,  third   Monday  in  February  and   August,  and   fourth 
Monday  after  the  fourth  Monday  in  March  and  September. 
Gates,    third    Monday  in    February,  May,  August,  and  No- 
vember. 
Granville,  first   Monday  in   February,  May,  August,  and  No- 
vember. 
Greene,    second    Monday    in    February,    May,    August,    and 

November. 
Guilford,  third  Monday  in  February,  May,  August,  and  No- 
vember. 
Halifax,  third  Monday  in  February,  May,  August,   and  No- 
vember. 
Harnett,   second  Monday  in    March,  June,    September,    and 

December. 
Haywood,  fourth  Monday  in  March,  June,    September,   and 

December. 
Henderson,  first  Monday  after  the  fourth   Monday  in  March, 

June,  September,  and  December. 
Hertford,    fourth    Monday    in    February,    May,   August,    and 

November. 
Hyde,  second   Monday  in  February,  May,  August,  and  No- 
vember. 
Iredell,  third  Monday  in  February,  May,  August,  and  November. 
Jackson,  third    Monday  in   March,  June,  September,  and  De- 
cember. 
Johnston,  fourth  Monday  in  February,  May,  August,  and  No- 
vember. 
Jones,  fifth  Monday  after  fourtti  Monday  in   ISIarch  and  Sep- 
tember, and  on  last  Monday  in  January  and  July. 


CnAP.    31.]        COURTS,    COUNTY   AND    SUPERIOR.  153 

Lenoir,  first  Monday  in  January  and  July,  and  third  Monday 
in  March  and  September. 

Lincoln,   third  Monday  after  fourth  Monday  in    March  and 
September,  and  second  Monday  in  January  and  July 

Macon,  second  Monday  in  March,  June,  September,  and  De- 
cember. 

Madison,  third  Monday  after  fourth  Monday  in  March,  June,* 
September,  and  December. 

Martin,  second   Monday  in  January,  April,  July,  and  October. 

McDowell,  iifth  Monday  after  fourth  Monday  in  March,  June, 
September,  and  December. 

Mecjvlenburg,  fourth  Monday  in  January,  April,  July,  and 
October.  ^        i  j^ 

Montgomery,  first  Monday  in  January,  April,  July,  and  Oc- 
tober. ^         r  Jl 

Moore,  fourth  Monday  in  January,  April,  July,  and  October. 

Nash,  second  Monday  in  February,  May,  August,  and  No- 
vember. 

New  Haiiover,  second  Monday  in  March,  June,  September, 
and  December. 

Northampton,  fii-st  Monday  in  March,  June,  September,  and 
December. 

Onslow,  first  Monday  in  March,  June,  September,  and  De- 
cember. 

Orange  fourth  Monday  in  February,  May,  August,  and  No- 
vember. 

Pasquotank,  first  Monday  in  March,  June,  September,  and  De- 
cember. 

Perquimons,  second  Monday  in  February,  May,  August,  and 
November. 

Person,  thu-d  Monday  in  March,  June,  September,  and  De- 
cember. 

Pitt,  first  Monday  in  February,  May,  August,  and  November. 

Polk,  te^ith  Monday  after  fourth  Monday  in  March,  June,  Sep- 
tember, and  December.  ^ 

Randolph,  first  Monday  in  February,  May,  August,  and  No- 
vember. 

Richmond,  third  Monday  in  January,  April,  July,  and  October. 

Rowan,  first  Monday  in  February,  May,  August,  and  Novem- 

Robeson,  fourth  Monday  in  February,  May,  August,  and  No- 
vember. ° 

Rockingham,  fourth  Monday  in  February,  May,  August,  and 

JNovember. 
Rutlierford,  ninth  Monday  after  fourth  Monday  in  March,  June 

beptember,  and  December.  ' 

Sampson,  third  Monday  in  February,  May,  August,  and  No- 

vember. 

Stanly,  second  Monday  in  February,  May,  August,  and  No- 
vember.  &      ' 

Stokes,  second  Monday  in  March,  June,  September,  and  De- 
cember.  '  ' 


154  COURTS,   COUNTY    ^VND    SUPERIOR.  [ChAP.  31 

Surry,  second  Monday  in   February,   May,  August,  and  No 

vember. 
Tyrrell,  fourth  Monday  in  January,  April,  July,  and  October, 
Union,  first  "  "         "  "         "        "  " 

Wake,  third  Monday  in  February,  May,  August,  and  Novem 

ber. 
Warren,  fourth  IMonday  in  February,  May,  August,  and  No 

vember. 
Washington,  third  Monday  in  February,  May,  August,  and 

November. 
Watauga,  third  Monday  in  February,  May,  August,  and  No- 
vember. 
Wayne,  third  Monday  in  February,   May,   August,  and  No- 
vember. 
Wilkes,  first  Monday  after  fourth   Monday  in  January,  April, 

July,  and  October. 
Wilson,  fourth   Monday  in  January,  April,  Jul}'^,  and  October. 
Yadkin,  first  "  "  "  "         "         "  " 

Yancey,  fourth  Monday  after  fourth  Monday  in  March,  June, 
September,  and  December. 
Court  may  sit       2.    If  the  business  of  any  of  the  said  courts  cannot  be  de- 
finishedtusU    termined  on  the  first  day  of  the  term,  the  justices  may  adjourn 
ness continued,  from  day  to  day,  not  exceeding  six  days,  at  the  end  of  which 
— R.  S.  c.  31,    time  the  causes  and  matters  which  may  be  depending  before 
them  and  not  then  finally  determined,  shall  be  continued  to  the 
next  succeeding  term. 
One  justice  3.    If,  by  reason  of  bad  weather,  or  other  cause,  a  sufi[icient 

may  adjourn     number  of  justices  shall  not  meet  for  holding  their  court  on 

court  daily  for  ■>    .  .        .  i-^i  j.r 

tiiree  days,  &c.  the  day  apponrted,  any  one  justice  may  adjourn  the  court  irom 
— R.  S.  c.  31,    jjj^y  to  day,  not  exceeding  three  days,  until  a  sufficient  number 

of  justices  can  attend  to  hold  the  court. 
Court  nor  pro-       4.    None  of  the  county  courts,  nor  any  process  in  any  of 
c^ssdiscon-      them  dependina;,  shall  be  discontinued  by  reason  of  the  jus- 

tinued  by  fail-     .  .   . ,'.  ?    ,  ,  .  ,         ,  •    j     i  c 

nretosit,orby  tices  falling  to  hold  court  upon  the  day  appointed,  or  ot  any 
^{J^^l^  ^j^'™  alteration  of  the  days  appointed  for  holding  it;  but  in  every 
c.  31,  s'.i.      '  such  case  all  process,  matters,  and  things  depending  shall  stand 
continued,  and  all  appearances  upon  returns  of  process  shall 
be  made,  to  the  next  succeeding  term  in  course,  in  the  same 
manner  as  if  such  succeeding  term  had  been  the  term  to  which 
such  process  had  stood  continued,  or  such  returns  or  appear- 
ances had  been  made ;  and  all  recognizances,  bonds,  and  obli- 
gations for  appearances,  and  all  returns,  shall  be  of  the  same 
force  and  validity,  for  the  appearance  of  any  person  at  such 
succeeding  term,  and  all  summonses  for  witnesses  as  eflectual, 
as  if  the  next  succeeding  term  had  been  expressly  mentioned 
therein. 
Throe  justices       5.  The  justices  of  thc  county  courts,  or  any  three  of  them, 
;.,  l.oid  court,    ghall  be  competent  to   hold  thc   terms  thereof,  and  shall  take 

riieir  junsdic-  .  ',.  i  ,  ^    n  i  n        'j  i        •    •       i 

tioii.— 'R.  S.  c.   cognizance  of,  and  have  full  power  and  autliority  and  original 

3],s.  5.  jurisdiction   to  hear,  try,  and  determine,  all  causes  of  a  civil 

nature  whatever  at  the  common  law,  within  their  respective 


Chap.  31.]        courts,  county  ax\d  superior.  i  r,r, 

counties  wl.ere  the  original  jurisdiction  is  not  by  statute 
confined  to  one  or  more  magistrates  out  of  court/or  to  he 
supreme  or  superior  courts;  of  all  penalties  to  the  ;mount  of 
one  Imndred  dollars  and  upwards  i„cu,Ted  by  violal^oiiT  tl°J 
penal  statutes  of  the  State,  or  of  laws  passed  by  the  Co,tre  s 
of  the  United  States,  where,  by  such  law,  juriscfict  on  is  S 
to  the  courts  of  the  several  States;  of  suits  for  dower  nar 
tat's'est':  P°^-^-f 'Jfg-i-'  -^d  distributive  shares  If  in' L" 
ates  estaes,  and  all  other  matters  relating  thereto-  to  trJ 
hear  and  determine  all  matters  relating  to  omhan  idio  s  and 
lunatics  and  the  management  of  their^states,  in  HI  e  mam  er 
as  courts  of  equity  exercise  jurisdiction  in  such  ca  es     to   n 

ho=e  on  y  whereof  the  origh.al  jorisdiction  i,  g  v,"  '„XSf 

Je,^ipx;aTr^:S"-:;r:f-3-ssr 

cretion,  at  the  first  term  which  may  happp,,  afte;  the  fir.t  clav 

powr:5ttS/^\sfS-;'l-t'l^^ 

»•    -Ine  btate  shall  be   div  ded   into   «n,.or,  ;,   r  •  ,   7  -^  .'^'' K.s.c.  3i,s.  £ 
as  hereinafter  snp..;fi,.ri  i   .u  ^"  judicial  circuits,  The  State  <ii- 

COmftLflU'Vlr."'  "rf^    ''^"1^  ^^  '^"•^PO-d  of  the  following  Co„,Uies    .on,. 

tim2:to  : "f:^  ^°"^^^  *^^^^°f  «'-"  -^^  l-'d  at  the  fbllowini  ^^i^^!..- 

^^lunS^nrtS  ^°"^^^  "^  ^^-^'^  -'^  September.  SH"- 

Bertie,  third  «  „  I'  "' "" 


lay  imr- 
law- 

laltvon  cl'k 
for  abusing 
tliem.— R.  S.  c. 


156  COURTS,   COUNTY   AND   SUPERIOK.  [ChaP.   31. 

Hertford,  fourth  Monday  of  March  and  September. 
Gates,  first  Monday  after  fourth   Monday  of  March  and  Sep- 
tember. 
Chowan,  second  Monday  after  fourth  Monday  of  March  and 

September. 
Perquimons,  third  Monday  after  fourth  Monday  of  March  and 

September. 
Pasquotank,  fourth   Monday  after  fourth   Monday   of  March 

and  September. 
Camden,  fifth    Monday  after  fourth    Monday  of  March  and 

September. 
Currituck,  sixth  Monday  after  fourth   Monday  of  March  and 
September. 
Second  circuit.      10.    The  second  judicial  court  shall  be  composed  of  the  fol- 
To%^-im^'  lowing  counties,  and  the   courts  thereof  shall  be  he*l  at  the 
0.32.  '    following  times,  to  wit:  — 

Duplin  County,  fourth  Monday  of  March  and  September. 
Wayne,  first  Monday  after  the  fourth  Monday  of  March  and 

September. 
Greene,   second   Monday  after  the  fourth  Monday  of  March 

and  September. 
Lenoir,  third  Monday  after  the  fourth  Monday  of  March  and 

September. 
Craven,  fourth  Monday  after  the   fourth  Monday  of  March 

and  September. 
Jones,  on  the  Wednesday  next  after  the  fifth  Monday  after  the 

fourth  Monday  of  March  and  September. 
Onslow,  sixth  Monday  after  the  fourth  Monday  of  March  and 

September. 
Carteret,  seventh  Monday  after  the  fourth   Monday  of  March 

and  September. 
Beaufort,  eighth  Monday  after  the  fourth  Monday  of  March 

and  September. 
Hyde,  ninth  Monday  after  the  fourth   Monday  of  March  and 

September. 
Wilson,  tenth  Monday  after  the  fourth  Monday  in  March  and 
September. 
Third  circuit.        H.    The  third  judicial  ch-cuit  shall  be  composed  of  the  fol- 
_R.S.c.3i,s.  j^^j^^g  counties,  and  the  courts  thereof  shall  be  held  at  the 
following  times,  to  wit :  — 
Martin,  on  the  Monday  before  the  first  Monday  of  March  and 

September. 
Pitt,  first  Monday  of  March  and  September. 

Edgcombe,      second  "  " 

Nash,  third  '^  "  || 

Johnston,         fourth  "  " 

Wake,  first  Monday  after  tlie  fourth  Monday  of  March  and 

September. 
Franklin,  second  Monday  after  the  fourth  Monday  of  March 

and  September. 
Warren,  third  Mi)nday  after  the  fourth  Monday  of  March  and 
September. 


Chap.  31.]      courts,  county  and  superior.  15^ 

""''nd'sXb?""'^''  ''^"  ^'"  '""^•^'^  '^°"''^>'  °^  March 
"^"alrdX'mber.  ''°"^'^^  ^^^"^  *'-  ^-"'th  Monday  of  March 

12.    The  fourth  judicial  circuit  shall  be   composed  of  the  r.„Hi     •     ■. 
folowmg  counties,  and  the  courts  thereof  shall  be  hekl  at    he  -«■  ' •  o''^"  : 

following  times,  to  wit : lo,  u. 

Granville,  first         Monday  of  March  and  September. 
Urange,      second  "  «  ^  « 

Chatham,  third  "  u  « 

Randolph,  fourth,  "  «  << 

''tS'e.'S.b'?"'^^  ^'^^^-  ^'^^   ^°^^*-^'^   M--'^>^  °^  March 
''"Id's^Ztf  "'^^^'^^'  '''  ^°"^"^   Monday  of  March 
^'tepteSef  °"'''^  "^'''  "^'  ^""'"^'^   Monday  of  March  and 
''IKeptemier''""''^^  ^""  "^^  '°"^^^  Monday  of  March 
^°tnSle7t;m'be'r.''°"'^^  ""''''  ^'^^  ^°"^^^  Monday  of  March 
^'Xptembe';  ^°"^'^  '''"  *'  ^""^'"^  Monday  of  March  and 
''"rd  iX'bef  "'^^^'^^^  '''  '^^''"^  Monday  of  March 
^'Td"SVtIber.''°"''^  ^'^^^  ^'"  ^°"^*'^  Monday  of  March 
loiL^ouSV""^'?!"'""^*  '^^"  ^*^  composed  of  the  fol- Fifth  chcuit. 
So^ln^Ws^to'^-t!'!^""^*^  *'^^^°^  ^'-^^  ^«  h^l^  ^tthe 
'^^an'd'Aulust.  ^^""^'^  ''^"'  '^'  '^^^*  Monday  of  February 

Sta'nlf  fi  ,?7'J''*,  ^^°"^.^  °^  ^^'^™^^y  ^"d  August. 
Manly,  hrst  Monday  of  March  and   September. 

fallterTo?A,r''^  °'-'''"'  "^'^   September;  and  the  A.son  ... 
tail  term  of  Anson  superior  court  shaU  continue  two  weeks  '""'r"^ '-» 
successively,  whenever  the  business  of  the  court  slXe!""'^ '" '"'• 

^'leTXi-:'  ""'"^  ^'^°"^'^  °^  ^''''''  ""^^  *'"'-d  Monday  of  Sep- 

"""Sj'l'mS^f   ^'°"''^  °'   ^^^'^'^  ^"^  f--*'^    Monday  of 
Bladen,  first  Monday  after  fourth  Monday  of  March,  and  fost 

Monday  after  fourth  Monday  of  September.  ' 

Columbus,  second    Monday  after  fourth   Monday  of  March 

and  second  Monday  after  fourth  Monday  of  Senten  ber 

t'hTTS  'Y  Monday  after  fourth  Monday  of llach   and 

thnxl  Monday  after  fourth  Monday  of  September 

IndZS  mT^  Monday  after  tLrth  ionday  of  March,  Xe.  i.no.. 

and  touith  Monday  alter  fourth    Monday  of  September ;  '"^'■^-  ^°""""° 


% 

158  COURTS,   COUNTY   AND    SUPERIOR.        [ChaP.    31. 

two  weeks.— E.        and  shall  continue  two  weeks  successively,  should  the  busi- 

r  —1852^  c"'  "^^^  requu-e  it. 

3$.         '    '     Sampson,  skth  Monday  after  fourth   Monday  of  March,  and 
sixth  Monday  after  fourth  Monday  of  September. 
Cumberland,  seventh  Monday  after  fourth  Monday  of  March, 
and  seventh  Monday  after  fourth  Monday  of  September. 
Sixth eii-cuit.—      14.    The  sixth  judicial  circuit  shall  be  composed  of  the  fol- 
E.  s.  c.  31,  s.    lowing  counties,  and  the   courts  thereof  shall  be  held  at  the 
'    '  following  times,  to  wit :  — 

Surry,  fourth  Monday  of  February  and  August. 

Yadkin,  first  Monday  after  fourth   Monday  of  February  and 

August. 
Ashe,  second  Monday  after  fourth  Monday  of  February  and 

August. 
Wilkes,  third  Monday  after  fourth  Monday  of  February  and 

August. 
Alexander,  fourth  Monday  after  fourth   Monday  of  February 

and  August. 
Davie,  fifth   Monday  after  fourth    Monday   of   February  and 

August. 
Iredell,  sixth  Monday  after  fourth  Monday  of  February  and 

August. 
Catawba,  seventh  Monday  after  fourth  Monday  of  February 

and  August. 
Lincoln,  eighth  Monday  after  fourth  Monday  of  February  and 

August. 
Gaston,  ninth  Monday  after  fourth  Monday  of  February  and 

August. 
Union,  tenth  Monday  after  fourth   Monday  of  February  and 

August. 
Mecklenburg,  eleventh  Monday  after  fourth   Monday  of  Feb- 
ruary and  August. 
Cabarrus,  twelfth   Monday  after  fourth  Monday  of  February 

and  August. 
Rowan,  thirteenth  Monday  after  fourth  Monday  of  February 
and  Augi-ist. 
Seventh  cir-        15.    The  seventh  judicial  circuit  shall  be  composed  of  the 
3i,''srio,  w?-  following  counties,  and  the  courts  thereof  shall  be  held  at  the 
1852,  c.  44.       following  times,  to  wit :  — 

Cherokee,  on  the  first         Monday  of  March  and  September. 
Macon,  second  "  "  " 

Jackson,  third  "  "  " 

Haywood,  fourth  "  "  " 

Henderson,  first  Monday  after  fourth  Monday  of  March  and 

Sc])tember. 
Buncombe,  second  Monday  after  fourth  Monday  of  March  and 

September. 
Madison,  third   Monday  after  fourth  Monday  of  March  and 

September. 
Yaney,  fourth  Monday  after  fourth    Monday  of  March  and 
September. 


Chap.  31.]      courts,  county  and  superior.  I59 

McDowell,  fifth  Monday  after  fourth   Monday  of  March  and 

beptember. 
Caldwell,  sixth    Monday  after  fourth   Monday  of  March  and 

beptember. 
Watauga,    seventh   Monday   after  fourth   Monday  of  March 

and   September. 
Burke,  eighth    Monday  after  fourth   Monday  of    March  and 

beptember. 
Rutherford,  ninth  Monday  after  fourth  Monday  of  March  and 

beptember. 

Polk,  tenth  Monday  after  fourth   Monday  of  March  and  Sep- 
tember.  ^ 

Cleavland,  eleventh  Monday  after  fourth    Monday  of  March 
and  beptember. 
16.    When  the   trial  of  a  capital  case  shall  have  been  com-  Superior  court 
menced,  and  the  time  of  term  herein  before  fixed  for  the  court  ™"y«™ti™e 
shall  expire   before  the  jury  shall   have  rendered  their  verdict -I'irrca;,-- 
thercin,  the  court  ftiay   be  continued,   by  adjournment,  from  f'r"7,''- ^'• 
day  to  day  afterwards,  for  the   purpose  of  finishing  the  trial        ' 
of  thekw"^         '''""'^'''^'  ''"'^  '■*^"^'^""S  thereon  the  judgment 

ahnL  T^''  '""l^  ''"T!'  '^''i^  ■''^  ^'^'^  ^y  J^'^g^^'  being  men  of  Held  by  judg- 
abihty,  mtegnty,  and  learned  in  the  law,  who  shall  have  cogni-  ^?,-  • 
^ance  and  legal  jurisdiction,  unless  otherwise  provided,  of'all  an'd'K^- 
pleas,  real,  personal,  and  mixed,  and  also  all  suits  and  demands  '^-o^-  ^-  '■ 
relative  to  dower,  partition,  legacies,  filial  portions,  and  estates     ' " '"• 
of  intestates;  and,  unless  it  be  otherwise  provided,  of  all  pleas 
of  the  State  and  criminal  matters  of  what  nature,  dec^ree  or 
denomination  soever,  whether  brought  before  them  bv  oricri'nal 
or  mesne   process,  or  by  certiorari,  writ  of  error,  appeal  from 
any  inferior  court,  or  by  any  other  way  or  means  whatsoever: 
and  they  are  hereby  declared  to  have  full  power  and  authority 
to  give  judgment  and  to  award  execution   and  all  necessary 
.  process  thereon,  and  shall   have,  use,  exercise,  and  enjoy  the 
same  powers  and  authorities,  rights   and  privileges,   as  were 
had,  used,  exercised,  and  enjoyed  by  any  former  judges  of  the 
superior  courts  in  this  State,   except  where  it  is  o"  may  be 
otherwise  directed.  •^ 

bnfsh.ri'  •'"''°''  f'!fl'^'   ''''''*''^  ^'""'^  ^^"^   State  at  large.  Judges  np- 
but  shall  be  appointed  for  some  one  judicial   circuit,  in  which  P°'"'<'''  f'™^ 

lZZ:rf%  '""^   "°  '''''^'  ''''''''''  ^-1  the  j^Klge  thus.^S'ro^eltd?i„ 
appointed  shall  reside  in  some  one  of  the   counties  of  the  cir  ^  P^'-'iouiar 

hold  ^^r'ffi'^  '"  'i'"   ''^"   ^^"   ^'^°^'^"'  ^°  l°"g  -^  he  may  Sl:..e 
holdt  eothce;  and  every  judge   before   he   shall  act  as  such,  "fV-it/s' 
t  e  in      °P7^fO"'-t'°>- before  the   governor,  or  before  one  of  c.\;;'-^*^^'' 
the  judges  of  the  supreme  or  superior  courts,  or  before   some 
justice  of  the  peace,   take   the  oath   appointed  for  public  oifi- 
cers,  and  also  an  oath  of  office.  ' 

ifv^^t.J''''  ""^^'Z'  °'  ""T'^'  ''*'^°''''  ''^hom  said  judge  shall  qual-  o.,h.  ..b- 
ily,  shall  cause  the  judge  to  subscribe  the  oaths  by  him  taken,  -'"bojUnd  re- 
and  having  certified  the  same,  shall  return   said  oaths  to  the  "suue"  "'''•' 


160  COURTS,   COUNTY   AND    SUPERIOR.        [ClIAP.  31. 

secretary  of  State,  who  shall  carefully  preserve  them  ;  and  if 
Penalty  for  act-  any  judge  shall  act  in  his  otfice,  before  he  shall  have  taken  the 
in?:  without  oaths  directed,  lie  shall  forfeit  and  pay  two  thousand  dollars, 
R.'s"!  sifsfil  one  half  to  the  use  of  the  State,  and  the  other  half  to  the  per- 
son who  shall  sue  for  the  same. 
Judges  to  ride  20.  The  judges  of  the  sitperior  courts,  shall  ride  the  circuits 
according  to     guccesslvelv,  commencing  at  the   first  circuit  according  to  the 

present  ar-  -j  '  .     .    ^  ,  i       •      i  i     i      n 

rangenient  of    arrangement  now  existing  between  the  judges,  and  shall  cause 

R'(]"''^'to  be    ^  notification  of  the  ridings  to  be  published  in  some  newspa- 

publislied.        per  by  the  first  of  February,  and  the  first  of  August,  preceding 

each  circuit :  Provided,  that  no  judge  shall  ride  the   same  eir- 

May  exchange  cuit  tvvice  ill  succession,  but  the  judges  may  exchange  with 

''°3i'^'~23  ^4  6^ch  other  for  any  courts   in  their  circuits ;  and  whenever  a 

'  '     '"    judge  shall  die  or  resign,  his  successor  shall  ride  the  circuits 

thus  allotted  to  his  predecessor. 

Judge  not  at-        21.  If  the  judge  shall  not  attend  and  hold  the  courts  on  the 

dav'of'te'i-m'      '^''^J  prescribed,  tlie  sherifi'  of  the  county  or   his  deputy  shall 

sheriff  to  ad-     open  and  adjourn  the  court  from  day  to  day,  until  the  judge 

'tWrdl  dly!^  ""  ^''^'^  attend  and  hold  the  same,  or  until  the  tliird  day  appointed 

for  the  holding  thereof,  on  which  day  the  sherifi'  or  his  deputy 

shall  adjourn  the  same  until  the  next  court,  to  which  time  all 

actions,  pleas,  process,  and  other  matters  pending  in  the  said 

court,  shall  be  continued  and  have  day,  as  if  the   court  had 

Rccognizanc^es,  been  duly  held.     And  all  recognizances,  bonds,  and  obligations 

continued  till    for  appearance,  and  all  returns  shall  be  of  the  same  force  and 

next  term.— R.  validity  for  the  appearance  of  any  person  at  such  succeeding 

O.  c.  31,  s.  2o.  Ill  f  .       ''    ^  Q-  1  .  c  P 

term,  and  all  summonses  tor  witnesses  as  enectual,  as  it  such 

succeeding  term  had  been  expressly  mentioned. 

Special  tenn  of      22.   Whenever  the  civil  business  of  the  superior  court  of  any 

appo'inted'by'   county  shall  become  too  great  to  be  done  at  the  regular  term 

judge,  when,     thereof,  the  judge  presiding  may,  and  he  is  required  to  appoint 

a  special  term  of  said  court,  to  be  held  for  one  or  two  weeks 

at  his  discretion,  at  some  specified  time  before  the  term  next 

Governor  noti-  ensuing.     He    shall   notify    the    governor   thereof,  who    shall 

fTudge?'"""'  appoint  one  of  the  judges  of  the  superior  courts,  other  than  the 

presiding  judge  aforesaid,  to  hold  said  special  court,  and  the 

Hsh'^'^t'— ''I'sM  ^^^'"'^  °^  ^''"^  court  shall  duly  publish  the  same :  and  the  court 

c.  10,  s.  1,  2,  o!  shall  be  held  for  the  time  appointed,  unless  the  business  be 

1848,  c.  2!i.       sooner  finished.     Provided,  that  whenever,  at  such  special  term, 

tinue  tiiiii trial  til e  trial  of  a  cause  shall  have  been  commenced,  and  the  term 

begun,  is  fin-     appointed  shall  expire  before  the  trial  shall  be  finished  and  the 

jury  shall  have  rendered  their  verdict  therein,  the  court  may  be 

continued  by  adjournment  from  day  to  day  afterwards,  for  the 

purpose  of  finishing  the  trial  and  receiving  the  verdict,  and 

rendering  thereon  the  judgment    of  the  law.     And   a  judge 

Pay  of  judge,    holding  a  special  term  of  two  weeks,  shall  also  receive  ninety 

doliars  for  the   second  week,  to   be   paid  as  provided  in  the 

clicpt'T  entilled  "  Salaries  and  Fees." 

Judge.Hofspc-       ij^    'p|||,  ,„(]g(.  Iiolding  a  special  term  is  empowered  to  iiear, 

cial  terms  to  >    ,  .  n     ^    -i  ,  i  •  -i 

have  the  pow-  try,  and  diMennine  all  civil  causes,  both  at  law  and  in  equity, 
fudges"""^'^      and  to  do  all  things  appertaining  thereto,  and  to  have,  use,  and 


Chap.  31.]        courts,  county  and  superior.  •  261 

enjoy  all  the  rights  and  privileges  of  a  judge  holding  a  regular  Xo  p.o.c,  ex- 
teim,  in  the  same  manner  and  to  as  full  extent,  as  if  the  same  ^-^i^'  subpoenas 
were  a  regular  term  of  the  court :  But  no  process  shall  be  made  Z^o%u 
reurnable  there  o  except  subpoenas,  or  other  process  for  the  -  ^M- 2.-"' 
attendance  of  witnesses.  1^".  '^-  29- 

24.    All  persons,  as  well  witnesses  summoned   in  the  civil  All  persons 
causes  of  said  court  to  the  regular  or  special  term,  as  officers  ttT^T 
or  others  who  may  be  bound  to  attend  the  next  regular  term  X'^^f^ 
01  the  court,  except  in  criminal  cases,  shall  attend  the  special ''"' '^^ "' ^- 2- 
term,  under  the  same  rules,  forfeitures,  and  penalties,  and  with 
the  same  privileges  as  if  the  term  were  a  regnlar  term. 

term'wirl  TTi\  °^J'!^''' /"''  quarter-sessions,  at  the   first  Jury  list  to  be 
term  which  shall   be  held  after  the  first  day  of  January  next  "JldVomtax- 

thiZZ-VrVr    ':i''  *T  ^^^^^  ^^^-^f^"--  ^hal/causeS^S^t^e;.- 
their  clerk  to  lay  before  them  the  tax  returns  of  the  precediiK.  T'.  ^''"^i"^'" 
year  for  their  county,  from  which   they  shall  select  t'he  „.:^er''"'- 
of  such  persons  only  as  are  freeholders,  and  as  are  well  qual- 

hv  th?  '^  I  f  J"^"''''  ^  ^'-'^  °^  ^''^''^  "^"^-^^  «hall  be  made  out 
sh^a  nnt  'V'  constitute  the  jury  list;  and  if  said  returns 
shall  not  contain  the  names  of  all  the  inhabitants  of  their 
county  who  are  freeholders,  and  in  their  opinion  are  well  qua  - 
ified  to  act  as  jurors,  they   shall  cause  the  names  of  all  such 

Sha^l  r.t|"nn.  f"      f  J"^  ^''^'-    ""'^  '""'^  i'^'y  !'«*'  ^°  "^ade  up,  To  continue  for, 

snail  continue  for  two  years  in  its  operation;  at  the  end   of  ^"^'"'A^^'^- 

Salv  r'l  ''%'°"1  f,'^^  "^"™^"^  '^^-^'^"y  ^he  jury  n^^^^^tT 
already  made  out,  and  diligently  inquire  if  any  persons  a ual   y^^''--R-  S. 
^ed    to    be  jurors,    as    above   rJentlned,   are^oSSd  ;'and  ^- "' ^•"■ 
whether  any  persons  not  qualified  to  be  jurors,  as  above  men- 
toned    have   been  inserted;  and   if  any  have   been   omiSed, 

retted  nH  f  '^'V  'l'  J"-^  ^'''  *«  ''^  '-^d^  -  ^bove  dt' 
rected  ,  and  if  any  have  been  inserted  not  possessing  the  re- 
quisite qualifications,  they  shall  strike  theii-  names  from  ttie 
jury  list;  and  to  obtain  full  information  on  this  subject,  the 
courts  may  examine  on  oath  any  person  they  think  proper, 
tn  K.       ■!?  ''^"''n  "''^'^  '^^'^'^  *he  names  on  their  jury  list  Jury  list  kept 

to  be  written  on  small  scrolls  of  paper  of  equal  size,  ind  put 'i^^T^-    , 

diSsi:,^-^prrv  'r  ^^^f  ?-•--- ^h^^  ^han  l^S^o^^^.- 

d.visions  marked  No.  1  and  2,  and  two  locks,  the  key  of  one  rT'^' 
to  be  safely  kept  by  the  sherifl'  of  the  county,  ihe  oth  Jr  by  the  "'  "■"™- 
chairman  of  the  county  court,  and  the  box  by  the  clerk  of    he 

sitlhi  "^'^1^*^^-'^  ---"  "f  their  court,  nlxt  preceding  tl" 
sitting  of  the  superior  court  of  the  county,  shall  cause  fo  be 
drawn  from  the  jury  box,  out  of  the  partition  marked  No  l' 
by  a  chad  not  more  than  ten  years  of  age,  not  more  than 
na^i^feTlSTb'^"  *'-" /^irty  scro'lls  ;  and  tte' persoiTwhose 
atThe  snf  l-"''"^"^-°"  ^^"1  ^^^'•olls,  shall  serve  a^  jm-ors 
Ay,,V/../  tl  .  "1  ^'^P^^^^^o'^t  to  be  held  for  the  county, 
sha  ni  1  I  ■h'''"',!!"''"  ^^"  "°^"^*y  *^°"^-t  of  ^"«h  county 
court  fh  n  V'  "  ?*'"'"  '">■'  "f  ^^'  ^"tting  of  the  superior 
the    n  r  !i  ?>"'■*  P^^^^dmg  such   county  court  shall  draw 

tht  juiy.     And  the  court  of  pleas    and  quarter-sessions,   at 
14* 


162  *  COURTS,    COUNTY   AND    SUPERIOR.         [ClIAr.    31. 

For  CO.  courts,  cach  term  thereof,  shall  in  like  manner  draw  the  like  nvimber 
and  how  ^f  persons  to  serve  as  jurors  at  the  next  term  of  said  court ; 

Peirons having  and  should  any  of  the  jurors  drawn  have  a  suit  pending  and 
suits  in  court,    ^t  irisue  in  the  superior   or  county  court;  or  should  the  name 

nottobedrawLi.      ^  .         .  ^   ' ,  ,,•'  , 

Norjusticesfor  of  any  justice  of  the  peace  be   drawn  to  serve   as  a  juror  ui 
the  county       the  couuty  court,  the  several  scrolls  with   his   or  their  names 
shall  be  returned  into  partition  No.   1   of  the  jury  box  ;  or  if 
any  of  said  persons  so  drawn  be  dead  or  removed  out  of  the 
county,  the  scrolls  with  their  names  shall  be  destroyed ;  and 
in  all  such  cases  other  jurors   shall  be   drawn  in  their  stead, 
and  the  scrolls  drawn  to  make  the  jury  shall  be  put  into  the 
partition  marked   No.   2.     Provided,  that  if  before  the  expi- 
ration of  two  years  the  names  of  the  jurors  in  the  partition 
No.  ]  shall  be  drawn  out,  then  all  the  names  shall  be  returned 
into  the   partition,   marked   No.   1,   and  drawn  out  again  as 
herein  first  directed.     And  there   shall   also   be   put  into  the 
said  partition  marked  No.  1,  at  the  court  following  the  first 
day  of  January  in  each  year,   the  names  of  such   persons  as 
shall  appear,  by  the  tax  list  immediately  preceding,  to  have 
become  qualified  to  serve  as  jurors  since  the  making  out  the 
jury  list,  and  whom  the  court  shall  deem  fit  persons  to  be  ju- 
Jurors  for  spe-  rors.     And  whenever  there   shall  be   a   special  court  for  the 
provideT-lI  county,  eighteen  jurors  shall  be   drawn  to   attend  said  court, 
S.  c.  31,  s.  27,  by  the  county  court  next  preceding  the  special  term,  in  the 
i844,c.io,s.  3.  ^^^^^^g^  and  under  the  rules  prescribed  in  this  and  the  pre- 
ceding sections  for  providing  jurors  for  the  regular  terms.* 
po-  court  fail-      27.    If  any  county  court   shall  fail  to   draw  jurors  for  the 
rofs,°siierTir,'''^"  Superior  court,  regular  or  special,  or  for  the  succeeding  term 
ci'lt,  and  three  ^f  i\^q  county  court,  the  sheritf  and  the  clerk  of  the  county 
'draw  thCTn";—   court,  in  the  presence  of,  and  assisted  by  three  of  the  justices 
R.S.c.3i,s.28.  pf  ^j^g  peace  of  the  county,  shall  draw  the  jurors  in  the  man- 
ner above  prescribed, 
terms  o'fcranty      28.  Whenever  it  shall  appear  to  any  court  of  pleas   and 
court,  may  be   quartcr-sessious  that  the  business  thereof  does  not  require  a 
— T"s'!''c™'3i'  jury  at  every  term,  it  shall  be  in  their  power,  a  majority  of  the 
s.  29.  'justices  being  present,  to   pass  an  order  dispensing  with  the 

attendance    of   a  jury   at   two   terms,  which    order    shall   be 
rescinded  only  by  a  majority  of  the  justices. 
fummon^dTand      ^9.   The  clerk  of  said  court  shall  deliver  the  list  of  the  jurors 
to  attend  till     drawn  for  the  county  and  superior  courts,  to  the  shcrifl'  of  the 
cmirt."'^^'"' ^^   county,  who    shall  summon    the    persons   therein    naiued   to 
attend  as  jurors  at  such  courts  respectively,  which  summons 
shall  be  served,  personally,  or  by  leaving  a  copy  thereof  at  the 
house  of  the  juror,  at  least  five  days  before  the  sitting  of  the 
court  to  which  he  may  be  summoned  ;  and  jurors  shall  appear 
and   give   their  attendance   until   duly  discharged;  and,  that 
there  may  not  be  a  defect  of  jurors,  the  sheriil"  shall  by  order  of 
court  summon,  from  day  to  day,  of  the  bystanders,  other  jurors, 

*  For  New  Hiuiover  county  fifty-one  jurors  are  to  lie  drawn,  of  whom  the  clerk  shall 
desigmite  thirty-six  for  the  "first  week,  and  fifteen  for  the  second  week,  who  shaU  be 
Bummoned  to  attend  accordingly.  — 1854,  c.  16,  s.  1,  2. 


Chap.  31.]   coukts,  county  and  superior.  163 

being  freeholders  within  the  county  where  the  court  is  held,  to  Tales  jurors 
serve   on  the  petit  jury,  and   on  any  day  the   court  may  dis-  monelif-T's. 
charge  those  who  have  served  the  preceding  day.  c-  3i,  s.  so.' 

30.  Every  person  on  the  original  venire  summoned  to  appear  Jurors  not  at- 
as  a  juror,  who  shall  fail  to  give  his  attendance  until  duly  dis-  '^'."J'""  ? ".f . 
charged,  shall  forfeit  and  pay  for  the  use  of  the  county  the  "™^    "  "*' 
sum  of  twenty  dollars,  to  be  imposed  by  the  court:  Provided,  To  have  till 
that  each  delinquent  juryman  shall  have  until  the  next  sue-  makVe™J° 
ceeding  term  to  make  his  excuse  for  his  non-attendance,  and, 

if  he  shall  render  an   excuse  deemed  sufficient  by  the  court, 
shall   be   discharged  without  costs.    And  every  person   sum- Tuies  jurors  not 
moned  of  the  bystanders,  who  shall  not  appear  and  serve  dur-  attending, fined 
ing  the  day  as  a  juror,  shall  be  fined  in  the  sum  of  two  dollars,  ul  c'sfs'sT 
unless  he  can  show  sufficient  cause  to  the  court ;  and  the  clerk  '    '  '    ' 

shall  forthwith  issue  an  execution  against  the   estate  of  the 
delinquent  tales  juror  for  such  amercement  and  costs. 

31.  No  sheriff  or  other  officer  shall  execute  any  writ  or  other  Exempt  from 
civil  process  on  the  body  of  any  juror,  during  his  attendance,  p';;;'^'^,';!^^' 
or  going  to,  and  returning  from,  any  court  of  record  ;  all  such  S.  c.  si,  s.  32. 
service  shall  be  void,  and  the  defendant  on  motion   shall  be 
discharged. 

32.  Regular  ministers  of  the  gospel  of  every  denomination,  Ministers  and 
regular  physicians  or  practitioners  of  physic  and  surgery,  keep-  n'om  se^vilTi'as 
ers  of  public  mills,  registers,  and  postmasters,  shall'be  exempt  jui-ors.-R?s. 
from  serving  as  jurors.  '^;  ■">  '^■.  ^^• 

oo      fpi         •      ]  c   l^  ■  Orand-]ury 

66.  ilie  judges  ot  the  superior  courts  and  the  justices  ofiiow  drawn.— 
the  county  courts  at  the  terms  of  their  respective  courts,  shall  K-^-c.3i,s..34. 
direct  the  names  of  all  the  persons  returned  as  jurors,  to  be 
•written  on  scrolls  of  paper  and  put  into  a  box  or  hat  and 
drawn  out  by  a  child  under  ten  years  of  age  ;  whereof  the 
first  eighteen  drawn  shall  be  a  grand-jury  for  the  court;  and 
the  residue  shall  serve  as  petit  jm-ors  for  the  court. 

34.    The  clerk  shall,  at  the  beginning  of  the  com-t,  swear  Petit  jurors 
such  of  the  petit  jury  as  are  of  the  original  panel,  to  try  all  "™™  '"  ""''^ 
civil  cases ;  and  if  there  should  not  be  enough  of  the  original 
panel,   the  talesmen  shall   be   sworn  ;  and  in  the  trial  of  all  in  State  cases 
offences,  not  capital,   unless  where  the   court  shall  otherwise  how ''^'"''' 
direct,  petit  jurors   of  the   original  panel  as  well  as  talesmen 
shall  be  sworn  as  prescribed  in  the  chapter  entitled  "  Oaths." 
Provided,  that  nothing  herein  contained  shall  be  construed  to  Right  of  chai- 
disallow  the   usual  challenges   in  law  to  the  whole  jury  go '«"g'^"o' affect- 
sworn,  or  to  any  of  them ;  and  if  by  reason  of  such  challenge,  k!  slTsifs.Te. 
any  juror  shall  be  withdrawn,   his  place  on  the  jury  shall  be 
supplied  by  any  of  the   original  venire,  or  of  the   bystanders 
qualified  to  serve  as  jurors. 

_  35.  The  clerk,  before  a  jury  shall  be  impanelled  to  try  the  Their  names  to 
issues  in  any  civil  suit,  shall  read  over  the  names  of  the  jury  I'o  called  in  the 
upon  the  panel  in  the  presence  and  hearing  of  the  parties  or  llcs'"be1o"e ^in> 
their  counsel ;  and  the  parties,  or  their  counsel  for  them,  may  panelled.  Kour 
challenge  peremptorily  four  jurors  upon  the  said  panel,  with-  !enKc!rin''c'rvil 
out  showing  any  cause  therefor,  which  shall  be  allowed  by '^■'-,«- - 1^-  S. 
the  court,  '^^  ■*'■'*•  ^'- 


164  COURTS,   COUNTY   AND    SUPERIOR.         [Cn.VP.    31- 

Constable  ->t-        36.    When  any  constable  (except  such  as  are  appointed  to 

tending  juries    attend  tlie   grand-jury)   shall   be   appointed  or  summoned  to 

Itftmu'p'l^ir:  attend  any  superior  o"r  county  court,  the  clerk,  at  the  time  of 

-R.  S.  c.  31,  the  first  f'oin"-  out  of  a  jury  on  the  trial  of  any  civil  cause, 

'■  ^*'  shall  administer  an  oath  to  the  constable  faithfully  to  attend 

the  several  juries  that  may  be  put  under  his  care  daring  that 

term,  that  shall   be   charged  in   the  trial   of  any  civil  cause  ; 

and  after  the  constable  "shall  be   once   so   sworn,  he  shall  be 

considered,   to   all  intents   and  purposes   as  acting  upon  the 

same  oath,  while  attending  every  jury  that  he  may  be  called 

to  attend  during  that  terra. 

rRACTICE,  PLEAS,  AND  PROCESS. 

Venue  of  ac-         37.   All  real   actions,  actions  of  ejectment,  trespass    quarc 
''""'•  claiismn  f regit,  suits  on  penal  statutes,  and  pleas  of  the  State, 

shall  be  commenced   in  the  court  of  the  county  wherein  the 
cause  of  action  shall  arise,  or  the  offence  be  committed,  and 
not  elsewhere  ;  and  all  actions  of  debt,  other  than  on  penal 
statute,  all  actions  of  detinue  and  replevin,  actions  of  account 
rendered,  assault  and  battery,  and  for  the  unlawful  taking  of 
goods,  all  actions  upon  the  case,  and  suits  for  legacies,  and  for 
distributive  shares  of  intestates'  estates,  shall  be  brought  to 
When  plaintiff  the  court  of  the  county  where  both  parties  reside.     And  when 
reside,  out  of    ^j^^   plaintiff  resides   beyond  the  limits  of  the   State,  shall  be 
brought  in   the  county   wherein  the   defendant  resides;    and 
When  plaintiff  when  the  plaintift'  and  defendant  reside  in  ditlcrent  counties, 
and  deft,  reside  jj^,^ J  tl,g   action  is  sued  in  the  court  of  pleas  and  quarter-scs- 
coun"       sions,  it  shall  be  commenced  in  the  court  of  the  county,  where 
Deft,  not  to  be  t^g  defendants,  or  one  of  them,  reside.     And  if  the  action  shaU 
co?'^m"tThis  be   sued  in  the  superior  court,  it  shall  be  commenced  in  the 
county  for  less  j.(^^„ty  where  the  plaintiff,  or  one  of  the  defendants  resides,  at 
"''"®'  the  option  of  the  plaintiff;  Provided,  lunrever,  that  no  action 

for  any  debt  or  demand  of  less  value  than  one  hundred  dol- 
lars, dne  by  contract  or  agreement  upon  any  cause  or  account 
whatever,  shall  be  brought  in  any  superior  court  other  than 
Actions  "tiiCT-that  of  the  county  where  the  defendants,  or  one  of  them, 
ma^e.ufatej.  reside.  And  when  any  action  shall  be  brought  otherwise  than 
i^!^io;ri,  «.'•  is  herein  directed,  the  same  may  be  abated  on  plea  of  the 
— 1638,  c.'u.    defendant. 

Not  to  be  sued      38.  No  action  shall  be  originally  commenced  in  any  ot  the 
f™-7s'ti.'m      said  courts  for  any  sum  of  less  value  than  one  hundred  dollars, 
Siondue'by     where  the  sum  sued  for  is  due  bv  bond,  promissory  note,  or 
bond,  &c.         liquidated  account  signed  by  the  party  to  be  charged  thereby  ; 
nor  for  any  forfeiture  or  penalty  of  less  amount  than  one  hun- 
Orforanvpon-dred  dollars,  incurred  by  virtue  of  any  act  of  Congress  or  act 
aitvorjustice's^f  ^,^g  General  Assembly;  nor  upon  any  judgment  rendered 
rTiw.or"    by  a  justice  of  the  peace,  when  the  principal  money  due  there- 
balance  on       j^ij  j^j  the  time  of  suit  exclusive  of  costs  is  less  than  one  hun- 
les"a'tno«u';:     d.vd  dollars;  nor  for  any  balance  of  less  value  than  one  nun- 
dred  dollars,  due  on  any  bond,  promissory   note,  or  liqiudfited 
account  signed  as  aforesaid  ;  nor  for  any  uiili(iuidated  debt  or 


Chap.  31.]   courts,  county  and  superior.  165 

demand  of  no  gi-eater  value  than  sixty  dollars,  due  by  con-  Norforuniiqui- 
tract  or  agreement,  or  for  goods,  wares,  and  merchandise  sold  ;^fS6o''and'un' 
and  delivered,  or  for  work  and  labor  done,  or  for  specific  arti-  ''«••    ' 
cles.     And  if  any  action  shall   be  commenced  in  any  of  the  bn'uthfto'be'* 
said  courts  contrary  to  the  provisions  of  this  section ;  or  if  the  abated. 
sum  sued   for  which   may   be  truly  due  and  owing,  is  of  less 
value  than  that  for  which  the  action  is  hereby  allowed  to  be 
commenced  in  said  courts,  the  same  may  be  abated  on  plea  of 
the  defendant,  or,  if  the  matter  appear  on  the  writ  or  declara-  Or  if  the  mat- 
tion,  may   be   dismissed  on  motion:  Provided,  however,  that '"^  "f  P''- <''^- 
nothing  herein  contained  shall  extend  to  penal  bonds  or  notes,  'tllT    °"  "'°' 
if  the  penalty  therein  stated  be  of  the   value  of  one   hundred  ''"""i  bonds 
dollars.  ^^c,iA<,i. 

39.  The  clerk  shall  note  on  process  the  day  on  which  the  Day  of  issuing 
same  shall  be  issued,  and  the  sheriff  or  other  officer  receiving  P^cess  to  be  ° 
it  for  execution,  shall  in  like  manner  note  thereon,  the  day  on  "heriff^oln-" ' 
which  he  shall  have  received  it,  and  the  day  of  the  execution-  dorse  day  of  re- 
and  every  clerk,  sheriff,  or  other  officer,  neglecting  so  to  do,'  SZti  "glt- 
shall  forfeit  and  pay  one  hundred  dollars.  R.  S.c.3i,s.43. 

40.  No  writ  or  other  leading    process,  returnable    to    any  Security  to  be 
court  of  record,  shall  be  granted  or  issued  by  the  clerk  or  his  S'^^n  before 
deputy  but  under  the   following  rules,   to  wit :  the  clerk,  by  Tsuirmay  be 
himself  or  his  deputy,  before  issuing  the  same,  shall  take  bond  dismissed. 
With   sufficient   security  of  the  person  suing,  conditioned  that 

he  will  prosecute  such  suit,  and  in  case  of  failure  therein,  will 

pay  to  the  defendant  ail  such  costs  and  damages,  as  may  be 

awarded  against  him  by  the  court:  Provided,  nevertheless,  that  Exception  as  to 

persons  may  sue  in  forma  pauperis  as  hereinafter  provided  •  P«''sons  suing 

and  when  any  person,  applying  for  a  writ  or  other  leading ;«,&"  s"t 

process,  shall  produce  to  the  clerk  an  order  signed  by  a  judo-e  ^i'^-  "• 

allowing  said  applicant  to  sue  in  forma  pauperis,  the  clerk 

shall  issue  the  same  without  requiring  bond  and  security ;  and 

if  any  writ  or  other  leading  process  shall  be  issued  without 

security,  unless  upon  such  order,  the  same  shall  be  dismissed 

by  the  court,  on  motion  of  the  defendant. 

41.  Where  the  clerk  shall  issue  any  writ  or  other  process.  Names  of  par- 
or  any  declaration  in  ejectment  shall  be  returned  into  his  'i""'  tbeir  sure- 
office  and  security  thereon  given,  as  hereinafter  directed,  he  baU  to  be  dock- 
shall  enter  the  same  in  a  book  to  be  kept  for  that  purpose  in  e'"' by  clerk  in 
his  office,  together  with  the  names  of  the  plaintiff  and  defend-  c.s^^s.Ts.^'  ^" 
ant  and  places  of  residence,  the  names  of  the  sureties  to  such 

writ,  with  the  place  where  they  live ;  and  wiien  the  process  is 
returned  he  shall  enter  therein  the  names  of  the  bail ;  which 
book  he  shall  have  before  the  court,  at  all  times  during  its  ses- 
sion, to  the  end  that  it  may  be  seen  by  the  jDarties  and  the 
court,  whether  sufficient  security  is  taken  as  required. 

42.  If  any  clerk,  by  himself  or  deputy,  shall  issue  any  writ  ciks.  issuing 
or  other  leading  process,  otherwise  than  as  by  the  two  preced- 1""''"'  '''.'"'- 
ing  sections  directed,  he  shall  pay  to  the  defendant  the  sum  of  ftrfeHK 
two  hundred  dollars.  R.s.c.3i,s.46. 

43.  Every  poor  person,  who    shall    have   cause   of  action  roorpoi-sons 


166  COURTS,    COUNTY    AKD    SUPERIOE.         [ClIAP.    31. 

mnvsuein/b)-- ao-ainst  any  other  person  in  law  or  equity,  shall  have,  at  the 

mapauj,erh.      jj^gg^g|io,j  of  ^^e  judge  of  any  court,  a  writ  of  law  or  in  equity, 

according  to  the  nocture  of  "his  cause,  paying  no  costs  on  the 

same  nor  giving  any  security  therefor;  and  the  court,  to  which 

Counsel  to  be  the  Writ  may  be  returnable,  shall  assign  to  such  poor  persoii 

assigned.— R.    learned  counsel  to  attend  to  his  case,  and  they  shall  attend 

S.c.3i,s.47.    ^^j^i^p^^^^  fpg  Qj.  j-e^vard;  and  no  costs  shall  be  charged  to  such 

person   by  any  officer  of  the  court  in  which  the  suit  shall  be 

brought.  u       1   • 

Writs  in  the         44.    When  there  may  be  two  or  more  defendants,  the  plain- 
same  suit^may^  tift',  in  any  suit  in  the  superior  court,  and  also  in  any  suit  in 
iountieVatThe  the  county  court,  (in  case  one  of  the  defendants  resides  in  the 
same  time.-     pointy),  may  issue  writs  directed  to  the  sheriff  of  each  of  the 
'         counties,  where  the  defendants  are  most  likely  to  be  found, 
noting  on  each  process  that  they  are  issued  in  the  same  suit ; 
and  when  the  writs  are  returned  they  shall  be  docketed  as  if 
only  one  had  issued ;  and  if  any  defendant  shall  not  be  served 
with   such   process,  the   same  proceeding  shall  be  had  as  m 
other  cases  of  similar  process  not  executed. 
Real  piaintiiT        4-5.    Upon  the   return  of  any  declaration  in  ejectment,  the 
in  ojectment  to  ^g^j  plaintiff,  his  agent  or  attorney,  at  the  return  term,  shall 
&' boTd'-R  enter  into  bond  payable  to  the  clerk  of  the  court,  for  the  use 
S.  c.  31,  s.  49.    Qf  ^j^g  defendant,  with  good  and  sufficient  security  to  prose- 
cute the  same  with   effect,  or  otherwise  to  pay  all  such  costs 
and  damages  as  shall  be  awarded  on  failure  thereof. 
Deft,  in  eject-      45    Every    person,    who    by    leave    of   court,    may  become 
"u-Und^-R.  defendant  in  an  action  of  ejectment,   shall,  on  doing  so,  by 
S.c.34,s.50.    himself  or   agent,   execute   a  bond  with  good  and  sutticiejit 
security,  payable  to  the  fictitious  lessee,  for  the  use  of  the 
plaintiff,  to  answer  the  action   and    abide    by  the   judgment 
which  may  be  rendered  therein,  in  the  same  manner  and  on 
the  same  conditions  as  bail  are  bound ;  and  the  obligors  shall 
be  under  the  same  rules  and  regulations,  and   liable  to  the 
same  judicial  proceedings  as  to  all  costs  and  damages  which 
may  be  awarded  against  the  defendant,  as  are  principal  and 
bail  in  other  civil  actions.  ,    „  r  -i  4. 

Pi'tiff  filing  to  47  Whenever  the  plaintiff  in  ejectment  shall  tail  to  give 
fil'diMniltd  bond  for  prosecuting  his  suit,  the  court  shall  on  motion  dis- 
DePttogive  miss  the  same;  and  whenever  any  person  may  be  desirous  01 
Stt  pTend.  becoming  defendant  in  a  suit  in  ejectment,  he  ^^flfJll'^'^}^ 
-R.  S.  c.  31,  as  before  directed,  or  surrender  himself  in  custody  ot  tlie 
'■  ^^-  sheriff,  before  he  shall  be  permitted  to  plead. 

If  piiiintiiTin  48.  If  the  lessors  of  the  plaintiff,  or  any  one  of  them,  in  an 
SrXlavit  action  of  ejectment,  his  agent  or  =^l^»J"ey.«hall,  at  the  return 
tiiat  dert  en- term  of  the  declaration  in  ejectment,  file  his  alhdavit  that  tne 
ir&^c ''he'""  tenant  in  possession  of  the  premises  sued  for,  and  to  whom 
slmil  not  plead  the  notice  of  the  said  suit  is  directed  in  the  process  issued, 
till  he  maice,       ^   .  j  i,^to  said  premises  as  his  tenant,  or  as  tenant  of  the 

counter  affida- "^"'"-'^"   ""^"  I  1    .,,.,,    U,..f  tlin  .;-iifl 

vitaml  give      person,  for  whom  such  agent  or  attorney  (h^po^e^,  1  li.it  tiic  saui 

n^l^s^^icfusTs't'-nant's  term  therein  was   expired,  at  the  commencement  ot 

the  suit,  and  that  he  refuses  to  surrender  the  possession  of  the 


Chap.  31.]       courts,  couxty  and  superior.  167 

premises  to  said  les.sors  or  any  one  of  them;  then  the  per.'^on 
in  possession  or  any  other  person  applying  to  become  defend- 
ant, shall  not  be  entitled  to  plead  to  the  suit,  and  the  lessors 
of  the  plaintiff  shall  be  entitled  to  judgment  final  against  the 
casual  ejector  at  the  said  term,  unless  the  person  in  posses- 
sion,  or  other  person   applying  to  be  made  defendant,  shall 
make    affidavit   before    the    court,    in    writing,  that   his  term 
therein  had  not  expired,  and  also  enter  into  bond  with  ample 
security  in  such  sum  as  the  court  shall  direct,  conditioned  that 
the  defendant  shall  pay  the  lessor  or  lessors  all  such  costs  and 
damages   as   shall  be  recovered  in  the  suit;  and  the  jury  in  On  the  trial  iu- 
such  cases,  when  issue  may  be  joined,  shall  find  in  their  ver-  J?c's -"if  for'''^ 
diet   whether   the    defendant  entered    into   possession   of  the  pi^iintiff,  shall 
premises  as  the  tenant  of  the  lessors  or  of  which  of  them,  and  ^orwa'l'f^lfd 
whether  he  refused  to   surrender  the  premises  after  his  term  occupation.— 
therein  had  expired.     And  if  the  finding  be  in  favor  of  the  Tsi  ^'  "'  "^' 
lessors  of  the  plaintift',  the  jury  shall   assess  the  damages  to 
which  they  shall  be  entitled,  including  the  value  of  the  occu- 
pation of  the  premises  sued  for  from  the  expiration  of  the  ten- 
ant's term  to  the  rendition  of  the   verdict,  and    damages   for 
waste  and  trespass  during  the  time  of  said  holding  over ;  and 
the  court  shall  render  judgment  against  the  defendant  and  his 
sureties  upon  their  said   bond,  to  be  discharged  by  the  pay- 
ment  of  the   damages  assessed  and  all  costs;  and  judgment 
upon  the  verdict  shall  bar  the  action  for  mesne  profits  or  for 
the  trespass  by  any  of  the  lessors  in  said  action. 

49.  If  afbu-  issue  joined   in    any  action    of  ejectment  the  V]eapu!sdarre- 
defendant  shall    voluntarily    abandon    the    possession   of  the  h"l''e,]tered'hf" 
premises   sued  for,  and  the  lessor  of  the  plaintift'  shall  enter  to  possession,"" 
therein,  a  plea  by  the  defendant  of  such  entry  and  possession  "eted  ^Mthtut 
shall  not  be  received,  unless  the  same  be  verified  by  affidavit  .iffidavit  and 
and  accompanied  with  payment  into  court  of  all  the  plaintiff's  S?;"™'"'"'' 
costs ;  and  such   plea   shall  be  a  waiver  of  the   plea  already 
pleaded.     And  in  all  cases  where   the   defendant  shall  have  And  if  bond  be 
given  bond   in   pursuance   of  the  provisions  of  the  preceding  gl'^^TjSon 
section,  and  he  shaU  plead  such  entry  and  possession  since  the  .i""-  to  assess 
last  continuance,  in  manner  aforesaid,  and  the  same  shall  be  ocSonand 
admitted  by  the  plaintiff,  or  on  issue  joined  be  found  for  the  «aste. 
plaintiff",  the  jury  shall  assess  damages  in  the  manner  provided 

for  in  said  section,  and  the  court  shall  render  judgment  for  the 
same  against  the  defendant  and  his  sureties  on  their  bond 
aforesaid. 

50.  AU  writs   and  other  civil  process  and  precepts,  except  Writs  and-civii 
subpcEnas  returnable  immediately,  shall,  unless  otherwise  di-  |.erunr.d"''"' 
reeled,  be  returned  the  first  day  of  the  term  to  which  the  same  '^""""'  ' 
shall  be   returnable,  and   shaU  be   executed   at  least  ten  days 
before  the  beginning  of  the  term,  when  returnable  to  a  superior 
court;  and  at  least  five  days,  when  returnable  to  the  county 
court;  and  if  any  original  or  mesne  process  shall  be  taken  out.  How  long  be- 
withm  the  time  above  specified,  it  shall  be  made  returnable  to  <"i'' cnm-t  to  be 
the  second  term  next  after  process  issued ;  and  all  process,  s^Tii,  s.  ss. 


168  COURTS,   COUNTY   AND   SUPERIOR.         [ClIAP.    31. 

made  returnable  or  executed  otherwise  than  is  herein  directed, 
shall  be  adjudged  void  upon  the  plea  of  the  defendant. 
Shfr.  returning      51.    Wlicu  u  slieritf  shall  return  that  he  hath  taken  the  body 
deft,  injmi,      ^j  defendant  and   conunittcd   hiin   to  the   prison  of  his 

Eppar^nc"  countv,  which  is  hereby  declared  to  be  the  proper  place  for 
&c.-lt.  S.c.    g^j^.,j    conunitmcnt,   the    plaintitT  may    enter    the  delendant's 
appearance,   and  he   shall  be   at  liberty   to   plead,  as  if  such 
appearance  had  been  entered  by  himself,  and  the  plaintitYmay 
proceed  as  in  other  cases  in  this  chapter  directed;  nevertheless 
the  defendant  shall  not  be  discharged  out  of  custody  but  by 
putting  in  bail,  or  by  rule  of  court. 
Orthatthedeft.      52.    When  the  sheriff  shall  return  in  a  civil  action,  that  the 
found '"uilntiff  defendant  is  not  to  be  found  in  his  county,  the  plaintifl  may, 
may  issue "Vfls  at  his  election,  sue  out  an  attachment  against  the  estate  of 
or  attachmeut.  ^^^^  defendant,  or  an  alias,  or  plttries  capias,  until  he  be  ar- 
rested, returnable  in  the  same  manner  as  original  process;  and 
if  the  sheriff  shall  return  any  estate  by  him  attached,  the  plam- 
tiff  shall  file  his  declaration  according  to  the  rules  of  the  court ; 
On  failure  of    and  if  the  defendant  shall  fail  to  appear  and  plead  within  the 
fu"™cntT"  time  herein  directed,  the  plaintiff'  shall  be  entitled  to  the  like 
default  may  be  iudcrment,  final  or  interlocutory,  against  the  defendant  as  if  he 
iStatftakenonhad    appeared    and    had   failed   to  plead;  and  the   estate  so 


idicial  attach- attached,  if  not  replevied  or  sold,  according  to  the  rules  pre- 
repkli'^ed^dd  scribed  for  estate  taken  on  original  attachment,  shall  remain  in 
on  final  judg-  the  custody  of  the  sheriff  until  final  judgment,  and  then  be 
"Tfj^'^'"'  disposed  of  in  the  same  manner  as  estate  taken  in  execution 
"  '  '     '  on  a  writ  oi  fieri  facias,  and  if  the  judgment  shall  not  be  satis- 

fied by  the  estate  attached,  the  plaintiff '  may  have  execution 
for  the  residue. 
men  shir,  re-  53.  And  whcu  any  defendant,  in  a  writ  or  other  process, 
turns  deft,  to  be  ^j^^jj  j^^  ^  known  inhabitant  of  any  other  county  than  that  of 
of"anoTher""  the  sheriff,  to  whom  such  writ  or  process  shall  be  directed,  the 
county, «to to  gj^pi.jj^  ^j^.^jj  ^gtum  the  truth  of  the  case;  and  thereupon  an 
e!s!c.'31's?b7.  alias  shall  issue,  directed   to  the  sheriff  of  the   county  where 

such  defendant  resides. 

Process  not  to       54.    It  shall  not  be  lawful  for  any  sheriff  constable,  or  other 

Sundr"lra'r  officer,  to  execute  any  writ  or  other  process  on  Sunday,  or  upon 

of'electi'oni'or    any  person  attending  his  duty  at  a  muster  of  the  militia,  or  at 

inustcriuoron  election  of  members  of  the  General  Assembly,  or  of  mcm- 

iesscs.-u.'s.  bers  of  Congress,  or  of  electors  of  President  and  Vice-President, 

c.  3i,s.58.       ^j.  yj-  ^,^y  oiiiccr  of  this  State,  or  upon  any  person  attending 

under  summons  as  witness  or  juror;  and  all  such  service  of 

process  is  hereby  declared  illegal  and  may  be  abated  by  plea, 

unless  the   same  be   issued  against  such  person  for  treason, 

felony,  or  misdemeanor. 

When  there  is        55.    If  at    any  time  there  should  not  be  in  the  county  a 

win  noTcxT-''"  proper  ofiiccr,  to  whom  precepts  or  process,  original,  mesne,  or 

^ltcp?oc*<fston  final,  of  a  court  of  record  shall  or  ought  to  be  directed,  who 

SlhVlI'di-   fa"  lawfully  execute  the  same;  or,  if  there  be  such  ollicer,who 

rcct  nrncess  to  shall  rcfusc  or  iicglcct  1o  cxeculc  such  precept  or  ))rocess,  then 

the  slieriiTof     .,       ,    ■     £  ^j^  ^  f  y,^^  which  the  sauic  hath  issued  or  shall 

adjoining coun-  m^-  i-'cin.  ui  mv-  v-v<uiv 


169 


Chap.  31.]        courts,  county  and  superior. 

issue,  upon  the  facts  being  verified  before  him  by  written  affi- 1^— R-  s.  c. 
davit  subscribed  by  the  plaintiff  or  his  a^ent,  shall  issue  such  f ',»j^''-i««' 
precept  or  process  to  the  sheriff  of  any  adjoining  county,  who 
shall  have  power  to  execute,  and  shall  execute  the  same,  in 
like  manner  as  if  he  were  sheriff  of  the  county. 

56.    Whenever  any  precept  or  process  shall  be  directed  to  the  siioriff  cx.cut- 
sherift  of  an  adjonung  county,  to  be  served  out  of  his  county  i"ff  P'-'^'-ss  out 
as  aforesaid,  such  sheriff  shall  have  for  such  service,  not  only  to  imv~; 
the  fees  allowed  by  law,  but  a  further  compensation  of  five  ??-'■—'=■  '^^  <=■ 
cents  for  every  mile  of  travel  in  going  to  and  returning  from        ' '"' 
service  of  such  precept  or  process:  Provided,  hoiverer,  that 
whenever  any  writ   of  fieri  facias  of  five  hundred  'dollars  or 
upwards,  shall  be  directed  to  the  sheriff  of  an  adjoinin-  county 
under  the  provisions  of  this  chapter,  such  sheriff  shall  not  be 
allowed  mileage,  but  only  the  commissions  to  which  he  shall 
be  entitled. 

RULES  OF  COURT. 

57.    The  following  rules  and  methods  shall  be  observed  in  Rule,  nf  court. 
said  courts,  namely  : —  Deci'n  to  be 

(1.)    The  plaintiff-shall  file  his  declaration  in  the  clerk's  office,  ^i^eets't'Says 
on  or  before  the  third  day  of  the  term  to  which  his  suit  shall  f*"™' ?'^^"" 
be  brought;  otherwise  the  suit  on  motion  shall  be  dismissed 
by  the  court  at  the  costs  of  the  plaintiff: 

(2.)    The  defendant  shall  appear  and  plead  or  demur  at  the  Deft,  to  appear 
same  term  to  which  the  writ  shall  be  returnable  ;  other^vise  the  T'^  ?''"="'  "'■ 
^  u?*'5„TyJ'^?  judgment  by  default,  which  in  actions  of  same  t  Jlm.'' 
debt  shall  be  final,  unless  where  damages  are  suggested  on  the 
roll,  and  in  that  case,  and  in  all  others  not  specially  provided 
for,  where  the  recovery  shall  be  in  damages,  a  writ  of  inquiry 
shall  be  executed  at  the  next  succeeding  term.     Provided,  that  V,'hen  special 
where  the  nature  of  the  action  requires  special  pleadin<^  ^j^^  plead iug  is  re- 
time for   pleading  may  be   enlarged.     And  provided  uker^Z'tT 
that  where  a  plaintiff;  on  any  of  the  demands  mentioned  in\v«r'v-      • 
section  ninety-one  of  this  chapter,  shall  obtain  judgment  final,  rv,"ntrl?.b" 
at  the  first  term  to  which  the  process  shall  be  returned   in  an  «f  f  •  <^^'^=.''t«<l 
action  of  debf^,  he  may  execute  his  inquiry  the  same  term,  as  ^if^i^tT" 
to  mterest,  and  the  value  of  any  foreign  currency  or  money  for 
which  the  suit  may  be  brought. 

(3.)  Where  the  defendant  pleads  specially,  the  plaintiff"  siiall  riai..tifi-to  re- 
reply  or  demur  at  the  same  term  at  which  the  plea  or  demurrer  "^Zt^ 
IS  med,  or  a  «o«  pros,  may  be  entered  by  the  defendant;  and  term,  &  piead- 

ihelSdaf'Tif'ir-'"^^"''''  "-^l'^^^^'""  te'^^^rs   an   issue,  KH:^- 
tne  defendant  shaU  join  issue  or  demur  at  the  same   term  &<=. 
otherwise   the   plaintiff  may  have  judgment;  and  where  the 
defendant  rejoins  to  the  plaintiff-'s  replication,  he  shall  file  his 
rejoinder  at  the  same  term,  or  judgment  shall  go  against  him, 
un  ess  the  time  for  pleading  shall  be  enlarged  as  aforesaid. 

(4.)  VV  hen  a  special  verdict  shall  be  found,  a  case  a<^reed  or  T"'"'  may  l>e 
a  demurrer  filed,  time  may  be  allowed,  upon  motion  ol"  either  ^I'.l^X'umw 
party,  to  the  next  term  to  argue  the  same.  &c.  ' 

15 


170  COURTS,    COUNTY   AND    SUPERIOK.  [ClIAP.  31. 

Parties  may  (5  )    111  any  matter  or  suit  depending  in  said  courts,  either 

o^vn  suit"  &f  plaintiff  or  defendant  may  declare,  plead,  and  defend  his  own 
cause ;  and  no  instrument  of  writing,  which  contains  the  sub- 
stance, shall  be  lost  or  destroyed  for  want  of  form. 
Proceedings  of  (6.)  For  the  better  preservation  of  the  records  of  court,  when 
ter"Jfb?crerk"  any  cause  is  finally  determined,  the  clerk  shall  enter  all  the 
fn'weii-Sound  proceedings  therein  in  a  book  well  bound,  and  an  entire  and 
'""'''■  perfect  record  make  thereof. 

Jury  causes  to       /7  \    Jury  causes  shall  be  first  tried. 

'toionsia  t         8.)    Motions  in  arrest  of  judgment  shall  be  argued  within 

rest  ofjudg-      iije  tiiree  last  days  of  the  term,  in  which  the  issue  shaU  be  triea, 

S-™ed!when.   the  defendant's  attorney  first  serving  the  plaintiff's  attorney 

with  a  copy  of  the  reasons  in  arrest  of  judgment,  unless,  upon 

sufficient  cause  shown  and  approved  of  by  the  court,  further 

time  shall  be  allowed. 

Argument  (9)    Arguments    on    writs  of   error,  special  verdicts,   cases 

to  be'LTrf.''"'  agi-eed,  demurrers,  and  petitions  shall  be  heard  upon  the  four 

last  days  of  the  term. 
Plea  in  abate-        (10)    No  plea  in  abatement  shall  be  received  in  any  court, 
"wiro'niy'on  Unless  the  party  offering  the  same  shall,  by  affidavit  or  other- 
aifidavit  or       wise,  prove  the  truth  of  such  plea. 

^Vhen  over  (H-)    Where  a  plea  in  abatement  shall  be  pleaded,  and  upon 

ruled,  plaintiff  argument  it  shall  be  adjudged  insufficient,  the  plaintilt  shall 
Shan  recover  ^^&^^^^  ^^^.^^^^  ^j^^  defendant  full  costs  to  the  time  of  over- 
As  many  pleas  ruling  such  plea  )  and  the  plaintift  in  replevin,  or  defendant  in 
Say  bSd-  any  action  may  plead  as  many  several  matters  as  may  be 
ed.  necessary  for  his  defence,  so  that  he  may  not  be  permitted  to 

plead  and  demm-  to  the  whole. 

Plea  since  the        (19)    The  entering  a  plea  since  the  last  continuance  ot   a 

a"cVu"owa"  or  suit  at  law  shall  in  no  case  be  construed  a  waiver  of  any  plea 

of  foi'mcr pleas,  previously  entered ;  but  the  same  shall  retain  the  like  lorce  ana 

operation,  which  it  would  have  had,  if  such  plea  since  the  last 

continuance  had  not  been  entered  :  Provided,  such  plea  be  ot 

matter  that  may  be  well  pleaded  with  the  matter  ot  the  other 

Issues  tried  at  (13)  AH  issues,  whether  general  or  special,  shall  be  heard 
afterTad"eup  and  tried  the  next  succeeding  term  after  they  shall  be  made  up. 
No  cause  con-  uiffcss  by  conseiit  of  parties,  or  ou  sufticient  cause  shown  to 
"t'oron  the  court  by  affidavit  fded,  the  case  shall  be  continued;  nor 
affidavit.  shall  any  case  be  continued  at  any  term  but  by  consent,  or  on 

affidavit  showing  sufficient  cause. 
Court  may  or-       (14  )    Whenever  it  shall  be  the  opinion  of  the  court,  that  the 
'^^Z^    party  praying  a  continuance  should  not  obtain  it  without  pay- 
pay  costs.         ^ent  of  costs,  the  whole  of  the  costs  shall  be  paid  belore  the 

continuance  is  granted;  and  the  party  paying  such  costs  shall 

not  be  entitled  to  recover  them,  although  the  judgment  ot  the 

court  be  finally  in  his  favor. 
One  att'y  only       (15.)    The  plaintiff  or  defendant  may  employ  several  attor- 
"?i'''"'l''b"v"'''"'' neys  in  his  case,  but  more  than  one  shall  not  speak   therelo, 
court.'    ^       unless  allowed  by  the  court;  and  in  jury  trials  they  may  argue 
tb'-'iu'v'b'ofh    to  the  jury  the  whole  case,  as  well  of  law  as  of  fact. 


law  and  fact. 


Chap.  31.]   courts,  county  and  superior.  171 

(16.)    Every  attorney  who  shall  claim  to  enter  an  appearance  Power  of  nttor- 
for  any  person  shall,  upon  bein<^  required  so  to  do,  produce  and  T^' '? ''^  PI'.'- , 

P,l  ,  •  ,  ii  „     II)        cc  c  ii  /  ■  1  .    ,    ,         ,     ■>     ,    .  cluced  ami  filed 

lile  in  the  clerk's  othce  of  the  court,  in  which  he  shall  claim  to  by  attorney,  if 
enter  an  appearance,  a  power  or  authority  to  that  etrect  signed  >'^l">'"e'l-  " 
by  the  persons  or  some  one  of  them  for  whom  he  is  about  to 
enter  an  appearance,  or  by  some  person  duly  authorized  in  that 
behalf:  otherwise  he  shall  not  be  allowed  so  to  do:  Provided,  if  necessary  to 
that  when  any  attorney  shall  claim  to  enter  an  appearance  by  erfthat "t/be" 
virtue  of  a  letter  to  him  directed,  (whether  such  letter  purport  done.— i;.  s.  c. 
a  geiieral  or  particular  employment,)  and  it  shall  be  necessary  is^;  f;^, 
for  him  to  retain  the  letter  in  his  own  possession,  he  shall,  on 
the  production  of  said  letter  setting  forth  such  employment,  be 
allowed  to  enter  his  appearance,  and  the   clerk  shall   note   to 
that  effect  upon  the  docket. 

58.    In  actions  brought  on  any  bond,  or  on  any  penal  sum  In  actions  on 
for  the  non-performance  of  any  covenants  or  agreements  in  any  ^™*'  \^\^^lis 
indentm-e,  deed,  or  writing  contained,  the  plaintiff  may  assign  may  Ltiga 
as  many  breaches  as  he  shall  think  fit,  and  the  jury,  on  the  "'""y'"''''"'''^'- 
trial  of  such  action,  shall  assess,  not  only  such  damages  and 
costs  as  have  heretofore  been  usually  done  in  such  cases,  but 
also  damages  for  such  of  the  said   breaches   assigned,  as  the 
plaintiff  upon  the  trial  of  the  issues  shall  prove,  and  the  like 
judgment  shall  be  entered  on  such  verdict  as  heretofore  hath 
been  usually  done  in  such  like  actions;  and  if  judgment  shall  If  j«fi.';mentbe 
be  given  for  the  plaintiff  on  a  demurrer,  or  by  confession,  or  by  fffoJ/demur"" 
default,  the  plaintiff,  upon  the  record  may  suggest  as  many  rer,  &c.,  he 
breaches  of  the  covenants  and  agreements  as  he  may  think  fit,  toeLh"f°" 
upon  which  a  jury  shall  be  impanelled  to  inquire  into  the  truth 
of  any  of  the  breaches,  and  to  assess  the  damages  that  the 
plaintiff  shall  have  sustained  thereby,  which  inquiry  shall  be 
made  as  in  other  cases  of  judgment  by  default;  and  in  case  Deft-  may  pay 
the  defendant,  after  such  judgment  and  before  execution  exe-  cosTsfn'to""'* 
cuted,  shall  pay  into  court,  to  the  use  of  the  plaintiff  or  his  court,  and  then 
executors  or  administrators,  such  damages  so  assessed,  together  1° J,T,!!p'°" 
with  the  costs  of  suit,  a  stay  of  execution  of  the  judgment 
shall  be  entered  on  record  ;  or  if  by  reason  of  any  execution 
executed,  the  plaintiff,  or  his  executors  or  administrators,  shall 
be  fully  paid   or  satisfied  all  damages   so   assessed,  with  his 
costs  of  suit,  and  all  reasonable  charges  and  expenses  for  exe- 
cuting the  execution,  the  body,  lands,  and  goods  of  the  defend- 
ant shall  be  thereupon  forthwith  discharged  from  the  execution, 
wdiich  shall  likewise  be  entered  upon  the  record;  but  notwith- ■T"'i.?i'i<'"'.*'t'^" 
standing,  in  each  case  such  judgment  shall  remain,  continue,  foMurther""^ 
and  be  as  a  further  security  to  answer  to  the  plaintiff,  and  his  breaches.— R. 
executors  and  administrators,  such  damages  as  shall  be  sus-  flsVa'w.'s,' 
tained  for  further  breach  of  any  covenants  in  the  same  inden-  c-  n,  s-  «• 
ture,  deed,  or  writing  contained,  for  which  the  plaintiff  may 
have  a  scire  facias  upon  the  said  judgment,  against  the  defend- 
ant, his  executors  or  administrators,  suggesting  other  breaches 
of  the  said  covenants  or  agreements,  and  to  summon  them 
respectively  to  show  cause  why  execution  shall  not  be  awarded 


172  COURTS,   COUNTY   AND    SUPERIOR.  [ChAP.  31. 

upon  the  said  judgment;  upon  which  there  shall  be  the  like 
proceedings  as  were  ui  the  action  of  debt  upon  the  said  bond 
or  obli'Tation,  for  assessing  damages  in  manner  as  aforesaid ; 
and  upon  payment  or  satisfaction  in  manner  as  aforesaid  of 
such  fature  damages,  costs,  and  charges,  all  further  proceeding 
on  the  said  judgment  are  again  to  be  stayed,  and  so  toties 
quoties. 
Rules  for  sum-  59.  In  obtaining  the  testimony  of  witnesses  in  causes  de- 
"e^ses^  ^^^      pending  in  the  superior  and  county  courts,  the  following  rules 

shall  be  observed  in  practice,  to  wit:  — 
Subpcena  for         In  sults  where  witnesses  are  to  appear  at  any  court,  the  clerk 
witnesses,  how  ^^  ||^g  instance  of  the  party  shall  issue  a  subpoena,  directed  to 
^  '^^"^'  the  sheriff  or  other  officer  of  the  county  where  such  witnesses 

reside,  mentioning  the  time  and  place  for  their  appearance, 
the  names  of  the  parties  to  the  suit  wherein  the  testimony  is 
to  be  given,  and  the  party  at  whose  instance  they  are  sum- 
moned. 
Subpoena  re-         Every  subpoena  made  returnable  immediately,  shall  be  is- 
di™ef '^toT-""  sued  only  in  term  time,  and  shall  be  personally  served  on  the 
sue  in  term       witness  therein  named. 

tinae  only.  ^  ^f  g^,g,.„  g^bpcEna  issued  by  the  clerk  in  vacation, 

iug  in  vacation,  in  case  any  witness  therem  named  is  not  to  be  lound,  may  be 
bowservea.-  j^^^  ^^  his  usual  place  of  residence;  and  such  copy,  certified 
64.  '       by  the  sheriff  or  other  officer,  and  left  as  aforesaid,  shall  be 

deemed  a  legal  summons,  and  the  person  therein  named  shall 
be  bound  to  appear  in  the  same  manner  as  if  personally  sum- 
moned. 
Wituesses  to         60.   Every  witness,  being  summoned  to  appear  in  any  of 
attend  from      ^j-^g  g^^j^j  courts,  iu  manner  before  directed,  either  in  a  civil  suit, 
tm"dis°eharged.  or  in  a  criminal  prosecution  or  plea  of  the  State,  shall  appear 
accordingly,  and  continue  to  attend  from  term  to  term  until 
discharged;  when  summoned  in  a  civil  suit,  by  the  court  or 
the  party  at  whose  instance  such  witness  shall  be  summoned; 
or  when  summoned  in  a  criminal  prosecution  or  plea  of  the 
State,  until  discharged  by  the  court,  the  prosecuting  officer,  or 
the  party  at  whose  instance  he  was  summoned ;  and  in  de- 
fault thereof  shall  forfeit  and  pay,  in  civil  eases,  to  the  party 
Penalty  for  not  at  whose  instance  the  subpoena  issued,  the  sum  of  forty  dol- 
attentiing.        lars,  to  be  recovered  by  scire  facias,  and  shall  be  further  liable 
In  civil  cases.    ^^  j^.^  ^^^.^^^  ^^^  ^j^^  ^^^y^  damages  which  may  be  sustained  for 

the  want  of  such  witness's  testimony;  or  if  summoned  in  a 
In  criminal  criminal  prosecution  or  plea  of  the  State,  shall  forfeit  and  pay 
cases.-R.  S.  c.  ciijhtv  dollars  for  the  use  of  the  State,  or  the  party  summon- 
^'^'■''-  in|him. 

Entitled  to  pay,  61.  Provided  always,  that,  if  the  civil  suit  sliall,  in  the  va- 
if  they  attend"  nation,  be  accommodated  and  settled  between  the  parties,  and 
seuied'in'vaca- the  party  at  whose  instance  such  witness  was  summoned 
tion,  unless  no-  j,[,o,jij  omit  to  dit^cliargc  liim  from  further  attendance,  and  for 
"m.'go"'^'"' want  of  such  discharge,  he  sliall  attend  at  the  next  term,  in 
that  case  the  witness,  upon  oath  made  of  the  facts,  shall  be 
entitled  to  a  ticket  from  the  clerk  in  the  same  maimer  as  other 


Chap.  31.]       courts,  county  and  superior.  I73 

witnesses,  and  shall  recover  from  the  party,  at  whose  instance 
he  was  summoned,  the  allowance  which  is  given  to  witnesses 
for  their  attendance,  with  costs. 

62.    And  provided  further,   that    no   execution    shall    issue  Xo execution  to 
against  any  defaulting  witness  for  the  forfeiture  aforesaid,  but  if™[,j'f'''""- 
after  scire  facias  made  kijown  to  him  to  show  cause  against  iie.<s".ni"fX'j 
the  issuing  thereof;  and  if  sufficient  cause  be  shown  of  his  in-  ^'ij-l";"?'  *• 
capacity  to  attend,  execution  shall  not  issue,  and  the  witness  '^■"'  '^•'"■ 
shall  be  discharged  of  the  forfeiture  without  costs  ;  but  other- 
wise the  court  shall,  on  motion,  award  execution  for  the  for- 
feiture against  the  defaulting  witness. 

_  63.    Any  plaintiff  or  defendant  in  a  civil  suit  may,  after  ae-  Depositions 
tion  brought,  and  as  well  before  as  after  issue  joined,  take  the  '"^y  ^'^.  '-'''^i 
deposition  of  such  persons  whose  evidence  he  may  desire  ^.q '"=f°'"« '*^"^- 
use  in  the  case,   under  such  rules  as  to  notice  as  may  have 
been  or  may  be  established  by  the  court,  in  which  the  suit  is 
pending,   for  the  taking  of  depositions,   without  any  special 
order  therefor:  And  if  there  be  no  general  rule  as  to  the  time  iftiierebcno 
of  notice,  nor  any  special  order  made  in   the  cause  to  that  g«"<"-al  nor 
effect,  the  time   of  notice   shall  be   as   follows :    Three  entire  ft™  undCT  the 
days,  when  the  party  notified  resides  within  ten  miles  of  the  rules  prescri'd. 
place  where  the  deposition  is  to  be  taken  ;  in  all  other  cases.  To  be'taken  un- 
one  day  more  for  every  additional  ten  miles.     The  depositions  tier  sealed  com- 
shall  be  taken  on  commission  issuing  from  the  court,  and  un-  kenTt  of  The 
der  the  seal  thereof,  when  the  commissioner  resides  out  of  the  ™"n'y- 
county,  by  one  or  more  commissioners,  who  shall  be  of  kin  to  be  Tki'ilo' 
neither  party,  and  shall  be  appointed  by  the  clerk  when  depo-  either  party, 
sjtions  are  taken  before  the  cause  is  put  to  issue.     The  deposi- 
tions shall  be  subscribed  and  sealed  up  by  the  commissioner 
and  returned  to  the  court,  the  clerk  whereof  shall  pass  upon  Clerk  to  pass 
them  under  the  same  rules  as  are  observed  by  clerks  and  mas-  on  depositions, 
ters,  in  respect  of  depositions  to  be  read  in  'courts  of  equity : 
and  all  such  depositions,  when  passed  upon  and  allowed  to  be  Deposition  of 
read  by  the  clerk  without  appeal,  or  by  the  court  on  appeal  Ko^emor.  &c., 
from  his  order,  shall  be  deemed  legal  evidence,  if  the  witness  '° ''''  '''"^' 
be  competent,  and  may  be  read  on  the  trial  of  the  suit,  pro- May  also  be 
vided  they  be  depositions  of  the  governor,  secretary  of  State,  ^^^'^^  "'"'^''^ 
treasurer,  comptroller,  attorney-general,  solicitor  for  the   Statej '^'"''' ™"'"'" 
or  of  any  judge,  or  of  any  deceased  person,  or  of  any  person 
so  afflicted  as  to  be  unable  to  travel  to  court,  or  of  any  person 
become  insane  since  the  taking  of  his  deposition,  or  of  any  per- 
son absent  ffora  the  State,  or  then  removing  from  the  State : 
Provided,  hoivever,  that  nothing  herein  contained  shall  prevent 
any  person  fmni  obtaining  from  the  court  a  special  order  for  the 
taking  of  depositions  in  any  cause  ;  but  depositions,  when  so  Adverse  party 
taken  and  allowed  to  be  read  under  the  rules  aforesaid,  shall  be  =j"o»"'.'»  . 
as  effectual  to  all  intents  as  evidence,  as  if  they  were  taken  in  "—iC&^TiiX 
the  manner  aforesaid :  And  provided  abcai/s,  that  the  adverse  js^o^'c' ^T 
party  shall  have  the  power  to  cross-examine  the  witness. 

64.    Commissioners  to  take  depositions,  appointed  by  the  ^n  comm'rs, 
courts  of  this  State,  or  by  the  courts  of  the   States  or  tcrrito-  foeesi&Z'em- 
15* 


174  COURTS,    COUNTY   AND    SUPERIOR.         [ChAP.  31. 

powered  to  ries  of  the  United  States,  arbitrators,  referees,  and  all  persons 
summon  wit-    nctino-  under  a  commission  issuino;  from  any  court  of  record 

nesses  to  take    "         a    _  ,         ,  i    i  i  ^i         i     i         r  j-u  „ 

their  deposi-  in  this  State,  are  hereby  empowered,  they  or  the  clerks  ot  the 
A°"o'clerks  of  courts  respectively  in  this  State,  to  which  such  commission 
courtr"  ^°  shall  be  returnable,  to  issue  subpoenas,  specifying  the  time  and 
place  for  the  attendance  of  witnesses  before  them,  and  to  ad- 
minister oaths  to  said  witnesses,  to  the  end  that  they  may  give 
AVitness  refus-  their  testimony.  And  any  witness,  appearing  before  any  of  the 
ing  to  give  his  gJ^J(]  persons  and  refusing  to  give  his  testimony  on  oath  touch- 
commSto  ing  such  matters  as  he  may  be  lawfully  examined  unto,  shall 
.I'aii-    .  .  be  committed,  by  warrant  of  the  person  before  whom  he  shall 

Sdte  ti'e'au-*°  SO  refuse,  to  the  common  jail  of  the  county,  there  to  remain 
thority,  &'c.—  y,-,^ji  i,e  j^^ay  be  willing  to  give  his  evidence;  which  warrant 
7i,78.-iMS,'c.  of  commitment  shall  recite  what  authority  the  person  hath  to 
66!— is50,c.      ^.g^i-g  ^-i^e  testimony  of  such  witness,  and  the  refusal  of  the  wit- 

188.  .         ., 

ness  to  give  it. 
Sheriff  to  exe-  65.  Tlie  sheriff  of  the  county  where  the  witness  maybe, 
cute  subp.  for  gj^j^jj  execute  all  such  subpoenas,  and  make  due  return  thereof 
monefbeforr  before  the  commissioner,  or  other  person,  before  wliorn  the 
comm'r,  &c.,  -^^itness  is  to  appear,  in  the  same  manner,  and  under  the  same 
under  penal-  p^^^^j^-gg^  ^^  j,_^  ^^^^  of  process  of  a  like  kind  returnable  to 
court;  and  when  the  witness  shall  be  summoned  five  days  be- 
fore the  time  of  his  required  attendance,  and  shall  fail  to  ap- 
Defaultsofwit-  pear  according  to  the  precept,  and  give  evidence,  the  default 
nesses  to  be  shall  be  noted  by  the  commissioner,  arbitrator,  or  other  person 
comm'^  aforesaid ;  and  in  case  the  default  be  made  before  a  comniis- 

ifraade' before  sioner  acting  under  authority  from  courts  without  the  State, 
potate'dou?of  the  defaulting  witness  shall  forfeit  and  pay  to  the  party  at 
tiie  State,  wit-  whosc  instance  he  may  be  summoned  fifty  dollars,  and  on  the 
aiTy  S-'sTo?'"''  trial  for  such  penalty,  the  summons  issued  by  the  commission- 
What  to  be  er.  Or  other  person  as  aforesaid,  with  the  indorsement  thereon 
dIfauU-1848  of  due  Service  by  the  officer  serving  the  same,  together  with 
c.66,s;2.—  '  the  default  noted  as  aforesaid  and  indorsed  on  the  summons, 
1850,  c.  188,  s.  gj^^jj  ^^  prima  facie  evidence  of  the  forfeiture,  and  sufficient 
'  '  to  entitle  the  plaintiff  to  judgment  for  the   same,  unless  the 

witness  may  show  his  incapacity  to  have  attended. 
Default  before  66.  But  in  case  the  default  be  made  before  a  commissioner, 
comm'r  acting  arbitrator,  referee,  or  other  person,  acting  under  a  commission 
?y  froTtiuf "  or  authority  from  any  of  the  courts  of  this  State,  then  the 
State,  certified  same  shall  be  certified  under  his  hand,  and  returned  with  the 
^  ''°^^'  subposna  to  the  court  by  which  he  was  commissioned  or  em- 

Proceedintrs      powered  to  take  the  evidence  of  such  witness ;  and  thereupon 
ti™TO)u.-iS50,  the  court  shall  adjudge  the  defaulting  witness  to  pay  to  the 
c.  188,  s.  2.       pjjj.(y  ^^  i.vhose  instance  he  was  summoned,  the  sum  of  forty 
dollars ;  but  execution  shall  not  issue  therefor  until  the  same 
be  ordered  by  the  court,  after  such  proceedings  had  as  are  pro- 
vided in  section  sixty-two  of  this  chapter. 
Witnesses  at-        67.    Witnesses  summoned  to  appear  at  any  survey,  or  be- 
tendingjury  of  fore  any  jury  of  view,  or  before  any  commissioner,  arbitrator, 
mfsTioner°&c.,  or  otlicr  person  authorized  to  require  their  attendance,  shall  be 
paid  .as  for  at- '  entitled  to  the  same  fees  as  for  similar  attendance  at  the  court 


Chap.  31.]      courts,  county  and  superior.  175 

of  the  county,  and  may  prove,  by  their  own  oath,  their  attend-  tenrling  court, 
ance,  mileage,  and  ferriage  before  such  person,  who  is  hereby  I'j  £:j"g^|i' «• 
authorized  to  administer  the  oath  :  and  when  they  shall  attend  euis.  i.Jisso, 
on  any  commission  issuing  from  without  the  State,  they  may  ''■  ^^'^•^-  ^■ 
recover  the  fees  for  attendance  against  the  party  summoning 
them,  or  his  agent  or  attorney  directing  them  to  be  summoned'^; 
and  when  they  shall  attend  under  a  commission  or  authority 
from  any  court  in  this   State,  the  fees  for  attendance  shall  be 
proved  as  aforesaid,  and  be  certified  to  the  proper  court  and 
taxed  as  if  the  witness  had  attended  the  court,  among  the  costs 
of  the  cause ;  but  nevertheless,  such  fees  may  be  immediately 
recovered  against  the  party  summoning,  as  is  provided  for  in 
section  seventy-three  of  this  chapter. 

68.  In  all  cases  not  already  provided  for,  when  witnesses  Snbp'as  to  at- 
are  required  to  attend  any  commissioners,  referees,  order  of ''■",'' '^?"""'" 

r    •'  111,.,  i'liil  utliers  in 

survey,  or  jury  of  view,  a  summons  shall  be  issued  by  the  clerk  certain  cases, 
of  the  court,  at  the  request  of  either  party,  expressing  the  day  Ifg^l^'y  ^'j''- 
and  place  when  and  where  they  are  to  appear,  the  names  ofrs."    '"'    '^' 
the  parties  to  the  suit,  and  in  whose  behalf  summoned. 

69.  If  any  person,. who  shall  be  summoned  as  a  witness  in  n-itnas=es  re- 
a  court,  shall  refuse  to  give  testimony  on  oath,  he  shall,  by  !'"'^.',|J°''j^p^-°^ 
the  court  before  whom  he  shall  be  summoned,  be  committed  ilnprKUc-a.— 
to_  the  common  prison,   and   there   remain,  until   he  shall    be  J'^;  •'^- '-'•  ^^' ^■ 
willing  to  give  testimony  in   such  manner  as  the  law  doth 

direct. 

70.  During  the  attendance  of  any  person  summoned  as  a  During  attend- 
v/itness  to  any  court,  or  before  a  commissioner,  arbitrator,  ref-  ^."^'^  exempt 
eree,  or  other  person  authorized  to  command  the  attendance  ch-aproc^l- 
of  such  witness,  and  during  the  time  such  person  is  going  to  K-S.  3i,  s.  72. 
and  returning  from  the  place  of  such  attendance,  allowing  one 

day  for  every  thirty  miles  such  witness  has  to  travel  to  and 
from  his  place  of  residence,  no  sheritlor  other  oflicer  shall  exe- 
cute on  such  person,  so  attending,  going  to,  or  returning  from 
said  court  or  place  of  attendance,  any  writ  or  other  civil  pro- 
cess of  a  leading  kind,  warrant,  order,  judgment,  or  decree  in 
any  cause ;  and  if  any  such  shall  be  so  executed,  they  shall  be 
adjudged  void,  on  plea  of  the  defendant,  or  on  exception  duly 
taken. 

71.  Every  witness  attending  court  shall  be  allowed,  for  each  Fees  of  witness 
day's  attendance,  and  for  every  thirty  miles  he  may  travel  *""  ^"fndaiice 
going  to  and  returning  from  court,  sixty  cents,  provided  the  c.' siJ's^'ts"' ^' 
witness  lives  within  the  county,  or  the  sum  of  one  dollar,  if  he 

lives  without  the  county;  also  his  ferriage. 

72.  When  any  cause  shall  be  removed  from  the  superior  After  removal 
court  of  one  county  to  that  of  another,  after  the  order  of  re-  "'"•■■'"'C'- =■"!)- 
moval,  depositions  may  be  taken  in  the  case,  and  subpcrnas  c'.iiml'Jions 
for  the  attendance  of  witnesses  and  commissions  to  take  depo-  e-t]-^^,,!'!",';/''!!^ 
sitions  may  issue  from  either  of  the  said  courts,  under  the  i:.'s!c.'':3",'.s.'74. 
same  rules  as  if  the  case  had  been  originally  coiximenced  in 

the  court  from  which  the  subpoenas  or  commissions  issued. 

73.  Every  person  summoned,  who  shall  attend  as  a  witness  Witness  to 


176 


COURTS,    COUNTY   AND    SUPERIOR.  [ClIAP.    31- 


prove  his  at- 
tendance at 
each  court. 


allowed  to 
prove  sanae 
fact.— R.  S.  c. 
31,  s.  76. 
Party  recover 


recover  costi 
unless  otlier- 
Tvise  provided. 
— R.  S.  c.  31,  s. 
77,  79. 


in  any  suit,  shall,  at  each  court,  before  the  clerk  thereof  or  his 
deputy,  ascertain  by  his  own  oath  or  alTirmation  the  sum  due 
for  travelling  to  and  from  court,  attendance  and  ferriage,  which 
shall  be  certified  by  the  clerk  or  his  deputy  ;  and  on  failure  of 
the  party,  at  whose  instance  such  witness  was  summoned,  (wit- 
nesses for  the  State  excepted.)  to  pay  the  same  previous  to  the 
departure  of  the  witness  from  court,  such  witness  may  at  any 
Maj-  recover     time  sue  for  and  recover  the  same  from  the  party  summoning 
temimce'— R*"  ^''^ !  ^""^   ^'^*^   certificate  of  the  clerk   or  his  deputy  shall  be 
S.'c.'o'i,  s.  75!    sufficient  evidence  of  the  debt.    Provided,  ahviiys,  that  where 
recovery  may  be  had  before  a  justice  of  the  peace  on  a  witness 
ticket,  the  justice  shall  deface  it  by  writing  the  word  judg- 
ment, and  deliver  the  same  to  the  person  of  whom  it  is  re- 
covered. 
On  final  judg't      74.  At  the  court,  where  the  cause  shall  be  finally  deter- 
fiied'and' taxed  mined,  the  party  recovering  judgment  shall  file  in  the  clerk's 
witiico'its.        office  the  witness  tickets;  the  amount  whereof  shall  be  taxed 
Two  witnesses  .^  ^j^^  j^.jj  ^^  qq^i^^  to  be  levied  and  recovered  for  the  benefit  of 
said  party.     Provided,  that  the  party  cast  shall  not  be  obliged 
to  pay  for  more  than  two  witnesses  to  prove  a  single  fact. 
75.  In   all   actions   whatsoever,   the    party  in   whose    favor 
judgment  shall  judgment  shall  be  given,  or,  in  case  of  nonsuit,  dismission,  dis- 

recover  costs,    J       »  o  '.      '  ,      . ,         1    ■■       i       j.     1     1 1    1 

continuance,  or  stay  of  judgment,  the  delendant  shall  be  en- 
titled to  full  costs,  unless  where  it  is  or  may  be  otherwise 
directed  by  statute ;  which  costs  shall  be  taxed  by  the  clerk 
against  the  party  bound  for  the  same;  and  among  such  costs 
shall  be  reckoned  the  expense  of  publications  in  newspapers 
ordered  in  the  course  of  the  cause,  postage  on  process,  docu- 
mentary evidence  and  depositions,  the  fees  of  commissioners 
for  taking  depositions,  the  fees  of  clerks  and  others  for  tran- 
scripts and  copies  necessary  to  be  used  in  the  cause,  and  the 
fees  of  witnesses  out  of  the  State,  jxiid  by  the  party  for  their 
attendance  before  the  commissioner  in  order  to  give  their 
depositions. 
Costs  of  peti'ns  76.  In  all  petitions  filed  in  said  courts  for  legacies,  filial  por- 
paid  as  court    ^ions,  distributive  shares,  dower,  partition,  or  any  other  matter, 

may  decree. —  '  .  '  .1.        i     1  1         j.    i.    j.      ji  j. 

R.S.c.3i,s.87.  unless  when  it  may  be  otherwise  directed  by  statute,  the  couit 
before  whom  the  same  shall  be  tried,  may,  at  its  discretion, 
decree,  by  whom  and  in  what  manner,  the  costs  accrued 
therein  shall  be  paid. 

77.  In  cases  where  there  shall  be  mutual  debts  subsisting 
between  the  plaintifi' and  defendant;  or  where  either  party 
may  sue  or  be  sued  as  executor  or  administrator  and  there  are 
glt-aMssuf '  mutual  debts  subsisting  between  the  testator  or  intestate  and 
upon  notice,  either  party,  one  debt  may  be  set  against  the  other,  either  by 
fi^Tbo.^' °'  Ijeiiig  pleaded  in  bar,  or  given  in  evidence  on  the  general  issue 
on  notice  given  of  the  particular  sum  intended  to  be  set  off 
and  on  what  account  the  same  is  due,  notwithstanding  such 
debts  shall  be  of  a  different  nature;  but  if  either  debt  arose  by 
reason  of  a  penalty,  the  sum  intended  to  be  set  off  shall  be 
pleaded  in  bar  setting  forth  what  is  justly  due  on  either  side. 


DePdt  may  i 
certain  cases, 
plead  set-oir. 
or  pive  it  in 


'  Chap.  31.]       courts,  county  and  superior.  i>j'j 

78.  In  actions  upon  the   case  for  slanderous  words,  and  in  In  M-,it,  for 
actions  of  assault  and  battery,  if  the  jury  upon  the  trial  of  the  '^'^""''"'  ^"''  "■'- 
issue  or  inquiry  of  damages,  do  assess  the  same  under  four  ii' lin^v'uS; 
dollars,    the    plaintiff  shall   recover    only    as    much    costs    as  ^*'  ''"**'  "'o 
damages.  "  ^         .3T"<f'~>'^' ''' ''' 

79.  In  actions  of  trespass  quare  clansvmfregU,  wherein  the  i„'tre,'p~ssq 
detendant  in  his  plea  shall  disclaim  to  make  any  title  or  claim  <=•  ''■  'lefentUint 
to  the  lands,  in  which  the  trespass  is  by  the  declaration  sup- .3'\"en- 
posed  to  be  done,  and  the  trespass  be  by  negligence,  or  invol-  '''^'••■S.-cin  bm-. 
untary,  the  defendant  shall  be  permitted  to  plead  a  disclaimer,  i^.^"' '• ''' '' 
and  that  the  trespass  was  by  negligence,  or  involuntary,  and  a 

tender  or  offer  of  sufficient  amends  for  such  trespass;  where- 
upon, or  upon  some  of  them,  the  plaintiff  shall  join  issue,  and 
it  the  issue  be  found  for  the  defendant,  or  the  plaintiff  shall  be 
nonsuited,  the  plaintiff  shall  be  barred  from  the  said  action 
and  all  other  suits  concerning  the  same. 

80.  When  several  persons  are  made  defendants  to  an  action  i„  t.e.pas, 
01  trespass,  assault  and  battery,  false  imprisonment  or  eject-  ^'■■'  "f-™"^' 
ment  and  any  one  or  more  of  them  shall  upon  the  trial  be;S& 
acquitted  by  verdict,  every  person  so  acquitted  shall  have  and  '-ecoverfuii 
re-cover  his  costs  of  suit,  in  like  manner  as  if  a  verdict  had  been  hXrc 'nifies 
given  against  the  plaintiff  and  acquitted  all  the  defendants  ■&c.-E.S.c.  ' 
unless  the  judge  before  whom  the  case  is  tried  shall,  imme-  ^^' '"  **" 
diately  after  the  trial,  in  open  court,  certify  upon  the  record, 

under  his  hand,  that  there  was  a  reasonable  cause  for  makino- 
such  person  a  defendant.  ^ 

81.  In  all  causes  depending  in  any  court,  in  which  the  pro 


When  a  f 


na  duces 


duction  of  an  original  paper,  lodged  in  any  of  the  public  offices  r-^.-  — 
ot  the  btate,  or  m  any  office  of  a  county,  superior,  or  supreme  '''■"'"^Ify 
court,  shall  become  necessary,  the  court  may  issue  the  process  s^.'ss.'"    '' 
of  subpcena  duces  tecum,  requiring  such  persons  as  hold  said 
offices  to  attend   the  court  with   such   original   paper,  in  Uke 
manner  and  under  the  same  penalties  as  witnesses  are  required 
in  cases  of  subpojna  to  testify. 

82.  The  said  courts  shall  have  full  power  in  the  trial  of  Cmu-t  mny  or- 
actions,  on  motion  and  due  notice  thereof  given,  to  reauire  the  fi^'- P^i'-ties  to 
parties  to  produce  books  or  writings  in  thei"  possession  or  con-  Tplir^.^"'^ 
trol  which  contain  evidence  pertinent  to  the  issue,  in  cases  and 

under  circumstances  where  they  might  be  compelled  to  pro- 
duce the  same  by  the  ordinary  rules  of  proceeding  inequitv- 
and  if  a  plaintiff  shall  fail  to  comply  with  such  order,  and  shall  rrfffaiiin.  to 
not  satisfactorily  account  for  his  failure,  the  court  on  motion  '"^  """^•■'"• 
may  give  the  like  judgment  for  the  defendant  as  in  cases  of  ^aX^::S^ 
nonsuit;  and   if  a  defendant   shall  fail  to   comply  with  such -«"«.' ?.'3i, ' 
order,  and  shall  not  satisfactorily  account   for  his  failure  the''*"' 
b°"efaulT*'°"  ""'  aforesaid  may  give  judgment  against 'him 

83.  The  indorsee  of   any  promissory  note,   or  other   neo-o- 1'"'<"--=''<'  '""y 

Liable    securitv   for   IItp    .in^-inoiif   ^e  .„X  .°       sue  maker  nnd 

s<-*,uiii.y  lor  tne  pa3,ment  ot  money,  may  prosecute  a  imUnvoi- joint- 
suit  lor  the  recovery  of  the  money  due  thereon,  damages,  and  'v  o/ .^ev>,-.iiy. 
charge   of  protest,  jointly  against  the  makers   and  indorsers  ecmol^ai^dlJd 


178  COURTS,    COUNTY   AND    SUPERIOR.        [ChAP.    31. 

raini?trators.—  thereof,  OT  Qgain.^t  any  one  or  more  of  f  hem ;  and  if  any  one 
r  s' c  3i' s  °'  or  more  of  such  persons  should  die,  the  aetioii  may  be  prose- 
88.  ''^"'  '^'     cuted   against   his    executors    or   administrators,   severally    or 

jointly  with  the  survivors. 
On  joint  obii-        84.  Ill  all  cases  of  joint  obligations,  or  assumptions  of  co- 
fn'/o"  mt^'     partners  in  trade  or  others,  suits  may  be  brought  and  prose- 
m.iy  be  sued.-  cuted  on  the  same  against  all  or  any  number  of  the  persons 
B.S.c.3i,s.89.  j^jji-jj^g  g^^gi,  obligations,  assumptions,  or  agreements. 
Joint  obligat'n       Qo.  In  case   of  the  death  of  one  or  more  joint  obligor  or 
aSXJsecu-  obligors,  the  joint  debt  or  contract  shall  survive  against  the 
tor-s&c.—R.S.  executors  and  administrators  of  the  deceased  obligor  or  obli- 
c.  31,  s.  90.       ^^^^^  ^^  ^^^^jj  ^_^  against  the  survivor  or  survivors,  and  when  all 
the  obligors  shall  die,  the  debt  or  contract  shall  survive  against 
the  executors  and  administrators  of  all  the  joint  obligors. 
Judgm't  iiow        86.    In  cases  where  an  executor  or  administrator  of  any  one 
entered  against  Qf  several  persons,  against  all  of  whom  living  a  joint  action 
aXuvvtvh/g'  may  be   sued,  shall  be  sued  with  the  survivors  of  said  persons, 
obligors.— R.  S.  and  it  may  be   necessary  that  judgment  should  be  rendered 
c.  31,  s.  91.       j^gj^i,-m|.  such  executor  or  administrator,  such  process  and  judg- 
ment may  be  awarded  against  him,  as  if  he  had  been  sued 
severally,    and  judgment    may    be    awarded    and  entered  up 
against  the  survivors  as  is  usual  in  other  cases. 
Several  actions      87.    Where  there  are  more  persons  that  one  bound  on  any 
conu-rttbe   bond,   promissory  note,   or    other  contract,  whether  they   be 
consolidated.—  bound  as  Original  obligors,  contractors,  or  indorsers,  and  tlie 
™iy taxed-    plaintiflt  shall  institute  more  suits  than  one  upon  such  bond, 
R.  8.0.31,3.92.  note,  or  contract,  the  writs,  on  their  return  to  the  court  whence 
they  issued,  shall  be  consolidated,  and  one  attorney's  fee  only 
shall  be  taxed. 
judgm'tbonds       88.    All  judgment  bonds,  notes,  and   other  witings,  with 
voiJastopow'r  po^yer  fo  any  person  whatever  to  confess  judgment  thereon, 
meTt!-l'i"s°"c.  shall  be  utterly  void  as  to  such  power ;  but  the  same  proceed- 
31,5.93.  ingg  shall  be  had  thereon  as  on  common  bonds  and  penal 

notes. 
Eseeu'ns  from      89.  Executions  from  the  courts  of  pleas  and  quarter-sessions 
county  courts    j^^v  issue  to  any  county  in  the  State,  in  the  same  manner  and 

mav  issue  to  ^         .  "^     .  ,•  p _    : —  ^.^.-...^ 


Sv  counV--   uiicler  the  same  rules  as  executions  from  a  superior  court. 
B.  s.  0.  31,  s.         90.    AH  sums  of  money  due  by  contract  of  any  kind  what- 
Lrestoncon- soever,  excepting  only  money  due  on  penal  bon-"^-   ■^■'^•'"  '— 
tracts  except    interest,  and  when  a  jury  shall  render  a  verdict 
S,To\Xad- shall  distinguish  the  principal  from  the  sum  allc 


Lrestoncon- soever,  excepting  only  money  due  on  penal  bonds,  shall  bear 
•    ■  '      '        -   _u.-ii  1 —  n  ,r.»^^iir.f  tliereior,  tiiey 

^ndonalljuds- snail  UlSUUgUlsa   llie    p.u..:,p.u    x......    .,,.  ......  "'■^'^'^  '^^  '"|'''"' 

merits.  est;  and  the  principal  sum  due  on  all  such  contracts  ^liall  beai 

™!"slprinlt"I  interest  from  the  time  of  rendering  judgment  thereon  until  it 

From  interest,   be  paid  and  satisfied.     In   like  manner,  the   amount  of  any 

-"•S-o-si-s-jiidgmcnt  or  decree,  except  the  costs,  rendered  or  adjudged  in 

any  kind  of  action,  though  not  on  contract,  shall  bear  interest 

till  paid,  and  the  judgment  and  decree  of  the  court  shall  be 

rendered  according  to  the  provisions  of  this  section. 

In  in.vmnnts        91.    Whenever\i  suit  shall  be  instituted  on  a  single  bond,  a 

final  hyde-       covenant  for  the  payment  of  money,  bill  of  exchange,  promis- 

edhVdiMk.-  note,  or  a  signed  aeeouni,  and  the  defendant,  shall  not 

K.s;c.3i,s.9G.    |^..^j^Q  jg^^e  thereon,  upon  judgment,  the  clerk  of  the   court 


Chap.  31.]       courts,  county  and  superior.  179 

shall  ascertain  the  interest  due  by  law,  without  a  writ  of  in- 
quiry, and  the  amount  shall  be  included  in  the  final  judgment 
of  the  court  as  damages,  which  judgment  shall  be  rendered 
therein  in  the  manner  prescribed  by  the  preceding  section. 

92.  Petitions  to  the  county  or  superior  court  may  be  filed  Petitions  filed 
during  the  term  or  in  vacation  ;  and  the  clerk  of  the  court,  in  '°  vacation. 
whose  office^  any  petition  may  be   filed,  shall  indorse  thereon 

the  time  of  filing,  and  issue  copies  and  subposnas  ;  but  in  case 

the  petitioner  shall  specify  the  amount  of  his  debt  or  demand, 

(as  nearly  as  may  be,)  and  shall  make  oath  to  the  same  in  open 

court,  or  before  the  clerk,  said  clerk  shall  issue  copies  of  the  capias  to  i.sue 

petition  to,  and  a  capias  ad  respondendum,  against  the  defend-  "i"'"  affiJ^ivit 

ant  whom  the  petitioner,  by  his  affidavit,  shall  charge  to  be  dema.'.T-R'" 

his  debtor,  for  the  amount  so  charged.  S.  c.  3i,  s.  97. 

93.  In  suits  by  petition,  service  whereof  hath  been  made  on  Pubiica'n  to  be 
one  of  the  defendants,  if  it  shall  be  shown  to  the  court  by  "'''.'I''  ''f.T; 
affidavit  or  otherwise,  that  another  defendant  is  not  an  inhabi-  inT^'eaofpl! 
tant  of  this  State,  or  on  diligent  inquiry  cannot  be  found  ;  as  ""°°- 
likewise    when    a    petition    shall    be    filed   in  court  in    vaca- 
tion against  any  who  reside  beyond  the  limits  of  the   State, 

and  such  non-residence  is  verified  by  affidavit  before  the  clerk 
of  the  court,  then,  in  either  case,  publication  shall  be  made  for 
SIX  weeks  successively  in  some  newspaper  printed  in  the  State, 
for  such  non-resident  defendant  to  appear  and  make  defence 
to  the  suit  at  the  next  term  of  the  court,  and  that,  in  default 
thereof,  the  petition  will  be  taken  pro  coiifesso  and  heard  ac-  Decree  pro  ««- 
cordmgly  ;  and  if  at  the  next  term,  (unless  further  publication ■^'"''■""S-";""' 
be  directed  by  the  court,)  it  shall  be  shown  that  publication  to  bind  a 'in 
has  been  duly  made,  the  court  may  proceed  in  the  cause  to  "''s^sls -' 
the  final  decree  therein,  in  the  same  manner  as  if  there  had  iS40,'c'45."- 
been  personal  service  on  the  defendant ;  and  any  decree  in  the  ^^^°'  "■  "^• 
cause  shall  conclude  the  defendant  to  such  extent,  in  like  man- 
ner and  under  like  rules,  as  if  made  in  a  court  of  equity. 

94     When  any  matters  of  account  shall  be  involved  in  a  Court  mav  or- 
suit  by  petition,  the  court  may  order  their  clerk  or  other  per-  derderk  toau- 
son  to  audit  and  settle  them,  and  to  report  the  balance  due  acooui!!^ 'l. 
thereon,  in  the  same  manner  and  under  the  same  rules,  as  in  ^-  "■  ^^'  -•  ^'*- 
references  bycourts  of  equity  to  the  masters  thereof. 

95.  Depositions  to  be  read  as  evidence  in  the  trial  of  suits  Depo'tns  in 
by  petition,  may  be  taken  in  the  manner  hereinbefore  pre- ''^p"I''''*l'i"'- 
scribed.  ^      ut  ' 

96.  The  clerk  shall  receive  the  same  fees  for  reports  in  cases  fees  of  clerk 
referred  to  them  in  suits  by  petition,  as  clerks  and  masters  for  ^"■"'=  "f '^'^"i- 
like  services,  3i;  s.  iui. 

97.  All  persons  within  age  may  sue  by  their  next  friend.        Suitbvinfa.its. 
J8.    Whenever  the   plaintilT  or  defendant  in   any   superior  Two  *■"'  ''^' 

court  shall  except  to  the  ojfinion  of  the  court,  and  the  same  iiin  of  excep- 
shall  not  be  allowed,  tlie  party  making  the  exception  shall  h"':-£t.;';t 
commit  the  same  to  writing  and  require  it  to  be  signed  and  in'i=c  tos'ign 
sealed  by  the  court,  and  the  judge  shall  sign  and  seal  the  i'."V'c' sPs 
same  ;  which  bill  of  exception  shall  constitute  a  part  of  the  u'S. '    '  •"  '   ■ 


180  COURTS,   COUNTY   AXD    SUPERIOR.         [ClIAP.    31. 

record ;  and  upon  an  appeal,  the  court  shall  proceed  to  judg- 
ment according  to  the  exception  as  the  same  ought  to  be 
allowed. 
Actions  of  ncct.      99.    Actions  of  account  may  be  brought  and  maintained 
S"&a?rn"r3  against  the   executors  and    administrators    of  any  guardian, 
ofgunrd'n?"&c°  bailiff,  and  receiver  ;  and  also  by  one  joint-tenant  and  tenant 
~Wi^'  '^'  ^^'  i'l  common,  his  executors  and  administrators,  against  the  other 
as  bailiff,  for  receiving  more  tlian  comes  to  his  just  share  or 
proportion,  and  against  the  executor  and  administrator  of  such 
joint-tenant    and    tenant   in    common ;    and   the    auditor   ap- 
pointed  by  the   court,  where  such   action   shall  be   pending, 
may  administer  an  oath  and  examine  the  parties  touching  the 
matter  in  question  ;  and  for  his  service  in  taking  such  accounts 
have  such  allowance  as  the  court  shall  adjudge  reasonable,  to 
be  paid  by  the  party  against  whom  the  balance  of  the  account 
shall  appear  to  be. 
Ifdefntinpe-      100.    If  an  action  be  brought  in  good  faith  by  any  person 
nul  suit  plead   ^^  recover  a  penalty  under  a  law  of  this  State  or  of  the  United 
meXrSiff   states,  and  the  defendant  shall  plead  in  bar  thereto  a  former 
tau7!L'l  H    judgment  recovered   by   or  against    him,  in  a  former  action 
7,'c!  20.        '    brou<^ht  by   any  other"  person  for  the  same   cause,  then  the 
plainliff  in  such  action  brought  in  good  faith,  may  aver  that 
the  said  former  judgment  was  obtained  by  covin  ;  and,  if  the 
collusion   or  covin   so   averred  be  found,  the  plaintiff  in  the 
Release  of  the  action,  sued  with  good  faith,  shall  have  recovery;  and  no  re- 
action void.       |gj^j.g  i-iiade  by  such  party  suing  in  covin,  whether  before  action 
Ms'ehlSct"?  brought  or  after,  shall  be   in   anywise  available  or  effectual: 
bie.— R.  S.  c.  ^ijj   g^.pry   person  pleading  such  false  plea  shall   be  deemed 

31,  s.  103.  I-  •    J 

guilty  of  a  misdemeanor. 
Paymentorsat-      101.    When  an  action  shall  be  brought  on  any  single  bill. 
isfaction  ^^  when   an  action  or  scire  facias  shall  be  brought  on  any 

TsuitsKmi  judgment,  if  the  defendant  hath   paid  the  money   due  upon 
nnd judgment,  g^^^]^  ^^jQ   qj.  judgment,  before   action  brought;  or  where  the 
defendant  hath  made  satisfaction  to  the  plaintiff  of  tiie  money 
due  on  such  bill  or  judgment,  in    other  manner  than  by  pay- 
ment thereof,  such  payment  or  satisfaction  may  be  pleaded  in 
bar  of  such  action  or  suit ;  and  where  only  part  of  the  money 
due  on  such  single  bill  or  judgment  hath  been  paid  by  the  de- 
fendant,  or  satisfied  in   other   manner   than   by   payinent  of 
money,  such  part  payment  or  part  satisfaction  may  be  pleaded 
in  bar  of  so  much   of  the  money  due  on   such   single  bill  or 
Also  payment  judgment  as  the  same  may  amount  unto  ;  and  where  an  action 
rfteHho'davofof  debt  is  brought  on   any  bond,  which   hath  a  condition  or 
pavini;,  in  suits  defeasance  to  make   void  the   same  upon  the  payment  of  a 
di\io,?cf  toTc  lesser  sum  at  a  day  or  place  certain,  if  the  obligor,  his  heirs, 
discharged  by   exccutors,  Or  administrators  have,  before  the  action  brought, 
R^s!  TI\7b.  paid  to  the  obligee,  his  executor  or  administrator,  the  principal 
106.' '    '     '     and  interest  due  by  the  condition  or  def(>asance  of  snt^ii  l)i)i)d, 
though  such  payment  were  not  made  shictly  according  to  the 
condition  or  defeasance  ;  or,  if  such  obligor,  his  heirs,  execu- 
tors, or  administrators  have,  before  action  brought,  made  satis- 


Chap.  31.]      courts,  county  and  superior.  181 

faction  to  the  plaintiff  of  the  principal  and  interest  due  by 
the  condition  or  defeasance  of  such  bond  in  other  manner  than 
by  payment  thereof,  yet  the  said  payment  or  satisfaction  may 
be  pleaded  in  bar  of  such  action,  and  shall  be  effectual  as  a 
bar  thereof,  in  like  manner  as  if  the  money  had  been  paid  at 
the  day  and  place,  according  to  the  condition  or  defeasance, 
and  so  pleaded. 

102.  If  at  any  time  pending  an  action  on  any  such  bond  ^".''"''' ,""  P^" 
with  a  penalty,  the  defendant  shall  bring  into  court,  where  the  sum  lUft,  inter- 
action shall  be  pending,  all  the  principal  money  and  interest  e^t,  and  costs 
due,  and  also  all  such  costs  as  have  been  expended  in  any  suit  intocourt,"s1iaii 
in  law  or  equity  upon  such  bond,  the  said  money  shall  be  discharge  pen- 
deemed  and  taken  to  be  in  full  satisfaction  and  discharge  of  si^'^s.  io7. 
said  bond,  and  the  court  shall  give  judgment  accordingly. 

103.  Every  judgment  given  in  a  court  of  record,  or  before  judgments  to 
a  magistrate  having  jurisdiction  of  the  subject,  shall  be  and  ''and  till  re- 

.o         .  -1  1  T  1  versed.  —  R.  S. 

contaiue  in  force  until  reversed  according  to  law.  c.  3i,  s.  108. 

104.  When  any  defendant  shall  appeal  from  the  judgment  On  appeal  or 
of  a  justice  of  the  peace  to  the  county  or  superior  court ;  or  Jj^™[  f^yf^" j^^, 
when  the  judgment  of  such  justice  shall  be  removed  by  the  de-  tice's  judg- 
fendant,   by  recordari  or  otherwise   to  a   superior  court,  the  "^y  conipei 
court  having  cognizance    of   such   appeal   or  recordari   may,  plaintiff  to  se- 
upon  sufficient  cause  shown  by  affidavit,  compel  the  plaintiff  g"g'^3j^3^'{^3_ 
to  give  bond,  with  sufficient  security,  for  payment  of  the  costs 

of  the  suit,  in  the  event  of  his  failing  to  prosecute  the  same 
with  effect. 

105.  When  an  appeal  shall  be  taken  from  the  judgment  of  Appeals  from  a 
a  justice  of  the  peace  to  a  county  or  superior  court,  the  same  [I^ig'ii^rs"  term 
shall  be  reheard  by  the  court ;  whereupon  an  issue  shall  be  of  court. 
made  up  and  tried  by  a  jury  at  the  first  term  to  which  it  is  agaiuTparty 
returned,    unless    continued;    and  judgment  shall    be    given  cast  .and  his 
therein  against  the   party  cast  and  his  sureties.     And  when  s.'c'^sT'sTiio. 
the  defendant  shall  make  default,  the   plaintiff  on   such  de-  How  to  obtain 
mands  as  are  mentioned  in  section  ninety-one  of  this  chapter,  g^f of 'iJef"uit. 
shall  have  judgment  in  the  manner  ther^n  provided,  and  in 

other  cases,  may  have  his  inquiry  of  damages  executed  forth- 
with by  a  jury. 

106.  Provided,  that  if  judgment  be  entered  for  the  plaintiff,  if  pi!ii"tiff  ap- 
and  he  shall  not  recover  on  his  appeal  a  gi-eater  sum  than  was  er  no'greater^" 
recovered  before  the  justice,  besides  interest  accrued  since  the  sum,  shiii  not 
rendition  of  the  judgment,  he  shall  not  recover  the  costs  of  the  liUbu- topay.- 
appeal,  but  shall  be  liable  at  the  discretion  of  the  court  to  pay  R-  s.  c.  3i,  s. 
the  same.  ■'^  " 

107.  In  appeals  from  the  county  to  the  superior  court,  if  the  Appeals  to  su- 
trial  in  the  county  court  was  of  an  issue  to  the  country,  a  trial  Go'w  u-ied. --^ R. 
de  novo  shall  be  had;  and  if  on  the  hearing  of  a  petition,  S-c-3i,s.ii2. 
there  shall  be  a  rehearing. 

108.  In  every  leap-year,  the  increasing  day  and  the  day  L^ap-year  day 
before,  in  all  legal  proceedings,  shall  be  counted  as  one  day.      _k.  s.  c.  ai, 

109.  No  execution  shall  issue  upon  any  judgment  obtained^;  'i;'- 

in   said  courts,  after   a  year  and  a  day  from   the   rendition  to  issue  ou 
16 


182  COURTS,   COUNTY   AND    SUPERIOR.         [ChAP.    31. 

judgment  after  thereof.  Provided,  that,  whenever  execution  hath  been  issued 
a  year  and  a     upon  such  judgment  within  tlie  year  and  day,  tlie  clerk  may 

day,  unless  re-  .  r  i       f^  ,,       •"    i  ,       ,  .•  -i-i  • 

vived.  — R.  S.  issue  an  execution  to  enforce  the  judgment,  at  any  time  within 

13e'i'c"45~^  year  and  day  from  the  it^suing  of  the  last  execution;  and 

'  '   '    '    when  the  party  claiming  the  benefit  of  such  judgment  shall 

come  after  the   year   and  day,  he  shall  not  be  entitled  to  an 

execution,  until  he  have  caused  a  scire  facias  to  be  issued  to 

,  the  defendant,  wherein  the  sheriff  shall  be  commanded  to  give 

notice  to  the  defendant  that  he  appear  before  that  court  in  which 

the  judgment  is,   at  a  certain  day,  to  show  if  he  have  any 

thing  to  say  why  the  judgment  ought  not  to  have  execution  ; 

and  if  he  do  not  appear  and  show  cause  why  execution  ought 

not  to  be  done,  the  sheriff  shall   be  commanded  to  cause  the 

judgment  to  be  executed. 

Nonsuit  not  al-      \\Q_    1,^   all  cases  where   a  verdict  shall  pass   against  the 

diet!— r!'^S.''c"  plaintiff,  he  shall  not  be  nonsuited. 

31,5.115.  Ill,    When  a  certiorari,  or  writ  of  habeas  corpus  cum  causa 

tion'no^tobr  shall  issue,  and  the  sheriff,  or  other  officer  to  whom  it  is  di- 
discharged  on  rected,  shall  return  upon  the  same  tliat  the  prisoner  is  con- 
—  R^^S.'^c.^si;  demned  by  judgment  given  against  him,  and  held  in  custody 
s.  116.  — 2  H.  by  virtue  of  an  execution  issued  against  him,  the  prisoner 
*'  '^'  ^'  shaU  not  be  let  to  bail,  but  shall  be  presently  remanded,  where 

he  shall  remain  until  discharged  in  due  course  of  law. 
Death  between      112.    In  no  action  shall  the  death  of  either  party  between 
Judg't Ut  er-    the  verdict  and  the  judgment  be  alleged  for  error,  if  such  judg- 
ror,  if,&c.— K.  nient  be  entered  within  t%vo  terms  after  the  verdict. 
Adm'f  d'b.  n!      113.    When  any  judgment  shall  be  had  by  or  in  the  name 
may  iiaye  ex'n  Qf  j^,^  executor  or  administrator,  in   such  case    an    adminis- 
forraer°alm'r.'*'  trator  de  boiiis  tioii  may  sue  forth  a  scire  facias,  and  take  exe- 
— R.  S.  C.31,  s.  cution  on  said  judgment. 
Accounts  may      114.    Whenever  suit  shall  be  brought  against  an  executor, 

be  taken  in  cer-  administrator,  or  guardian,  or  upon  the  bond  of  any  such  per- 
tain actions  '        o    „    _    _    '.         ,  >     .  .      . .,.  - ,  ,  ,  • 


matters  pleaded  in  such   suit  may  make  it  necessary  that  an 

account  shall  be  taken  in  order  to  a  due  determination  of  the 

cause,  the  court,  at  the  appearance  term,  or  at  any  time  in  the 

progress  of  the  cause,  may,  in  its  discretion,  refer  the  taking 

of  such  account  to   such  commissioner  or  commissioners  as 

the  parties  may  select ;  if  they  cannot  agree  in  tiic  selection, 

then  the  court  may  refer  it  to  the   clerk  or   any   otlier   per- 

To  be  stated  as  SOU  as  commissioner,  and   such  commissioner  shall  state  an 

in  equity.         account,  under  the  same  rules  and  regulations  as  are  provided 

for  stating  accounts  in  courts  of  equity;  whose  report,  wlien 

confirmed   by   the   court,  shall  be  conclusive  evidence  of  the 

amount  of  the  plaintiff's  demand  only  as  against  the  parties; 

Paytocommis-and  the  court  shall  allow  the  commissioner  for  his  services,_in 

sioncrs.— R.  S.  jiijg  manner  as  masters  are  allowed,  to  be  paid  by  the  parties 

iSBol'c.'sV.^'"  in  such  proportions  as  the  court  siiall  adjudge. 

Causes  in  sup'r      115.   In  all  causcs  in  the  superior  courts,  civil  or  criminal, 

courts,  may  be 


Chap.  31.]      courts,  county  and  superior.  183 

in  which  it  shall  be  suggested  on  oath,  on  behalf  of  the  State,  removed  on 
of  the  traverser  of  the  indictment,  or  of  the  plaintiff  or  de- ?®'l"^''' '° ''•'" 
fendant,  that  there  are  probable  grounds  to  believe  that  justice  •\v™"tlmukr 
cannot  be  obtained  in  the  county  in  which  the  causes  shall  "'?'}i'^;'.'J" '''^* 
be  pending,  the  judge  is  hereby  authorized  to  order  a  copy  "' ^ ''"''■ 
of  the  record  of  the  cause  to  be  removed  to  some  adjacent 
county  for  trial.     The  provisions  of  this  section  shall  extend 
to  indictments  against  slaves  ;  and  the  affidavit  for  removal  on 
the  part  of  the  defendant  may  be  made  by  the  master,  or  by 
the  slave,  under  the  advice  of  his  counsel  as  stated  in  the  affi- 
davit.    Provided,  lioioever,  that  no   cause  shall   be   removed,  Reasons  for  re- 
unless  the  facts  are   set  forth,  whereon  the  party  founds  his  forthl'-R!!?' 
belief  that  justice  cannot  be  obtained  in  the  county,  so  that  c  sijs.  120.  ' 
the  judge  may  decide  upon  such  facts,  whether  the  belief  is 
well  grounded. 

116.  When   an   application  shall  be  made  to  remove  any  Eemoved  twice 
cause,  civil  or  criminal,  to  an  adjacent  county,  which  shall  ""J^^ 

have  been  before  removed,  the  person  applying  shall  set  forth  movarrensont 
on  affidavit,  particularly  and  in  detail,  the  grounds  of  his  appli-  stated  in  detail. 
cation,  and  the  presiding  judge  may,  in  his  discretion,  remove  123.'   ■''•^^'^' 
the  same  to  any  adjacent  county  for  trial.     Provided,  that  no 
cause,  under  any  circumstances,  shall  be  removed  more  than 
twice. 

117.  The  parties  to  any  cause,  civil  or  criminal,  in  the  su-  Removed  bv 
perior  court,  may  by  consent  remove  the  same  for  trial  to  any  1°"' g",'' "loi 
convenient  county,  which  shall  be  entered  of  record.  '*^'     '^'      ' 

118.  When  a  cause  shall  be  directed  to  be  removed,  the  On  removal 
clerk  shall  transmit  to  the  court  to  which  the  same  is  removed,  what  to  be  sent 
a  transcript  of  the  record  of  the  case,  with  the  bail-bond,  pros-  -R.  sfc!3i7s.' 
ecution  bond,  and  the  depositions  and  other  written  evidences  ^'^'^• 

filed  therein. 

_  119.  Whenever,  in  any  suit  pending  in  the  county  or  supe-  Survevs  order- 
rior  court,  the  bounds  of  lands   shall  be  drawn  in  question, 'jf, '" '^■Jf'^^  °f 
the  court  may,  if  deemed  necessary,  order   a  survey  of  the  iSy!"     °"" 
lands  in  dispute,  agreeable  to  the  bounds  and  lines   expressed  "fi;^,™^.,'}^ 
in  each  party's  titles,  and  such  other  surveys  as  shall  be  deem-  Ch™pe"'fOT' 


edi 


s  to  be 


ed  useful ;  which  surveys  shall  be  made  by  two  surveyors  ap-  ^^^^^ 
pointed  by  the  court,  one  to  be  named  by  each  of  the  parties,  -r'sI'c.'^sT.'s: 
or  by  one  surveyor  if  the  parties  agree  :  and  the  surveyors  ^^*- 
shall  attend  according  to  the  order  of  the  court  and  make  the 
surveys,  and  shall  make  as  many  accurate  plans  thereof  as 
shall  be  ordered  by  the  court ;  and  for  such  surveys  the  court 
shall  make  a  proper  allowance,  to  be  taxed  as  and  among  the 
costs  of  the  cause. 

120.  Where  the  clerk  of  the  superior  or  county  court  issues  Seal  of  court 
precepts  or  process  to  the  county  of  which  he  is  clerk,  he  shall  ""'.'' wi'cn'-" 
not  annex  the  seal  of  the  court  thereto.  E.  s.  c.  31, 's. 

121.  The  sheriff  of  every  county  shall  serve  all  notices  that  N^ft'icci.in  le-'al 
may  be  tendered  or  delivered  to  him,  or  that  are  required  to  P' «ee.iiii{rs "to 
be  given  in  any  cause,  motion,  or  proceeding,  either  at  law  or  \\,^^,sT^  ^^ 
in  equity,  as  well  for  commencing,  as  for  proceeding  therein 


184  COUETS,   COUNTY   AND    SUPERIOR.  [ChAP.   31. 

How  served,      imtil  the  Same  shall  be  ended;  and  he  shall  serve  them  by 

Eetuni,  cvi-      deliverinff  a  true  copy  thereof  to  the  person  to  whom    the 

dence  of  se.-     ^^^^^  ^j^^,,  j^^  directed,  if  to  be  found  in  his  county,  or  by  leav- 

Wien executed  ;„„  a  copv  thereof  at  the  usual  place  of  abode  of  such  person 

lop''artf"'""'^n  his  county,  and   shall  certify  on  the  notice  the  time  when 

wiien  "sheriff    gald  uotice  was  served,  or  copy  was  left  at  the  place  of  abode. 

oner  to  serve'"  Such  return  shall  be  evidence   of  the  service  of  the   notice  as 

and  return        mjiy  be  therein  stated  ;  and  the  sheriff  shall  deliver  the  notice 

*3lTr26'm'with  his  return  to  the  party,  his  attorney  or  agent,  at  whose 

'  '      '         instance  it  was  issued,  upon  demand  of  the  same  ;  and  in  case 

the  sheriff  of  the  county  in  which  such  notice  is  to  be  served, 

shall  be  a  party,  or  interested  in  the  proceedings,  the  coroner 

shall  serve  the  same   and  make  return   thereof  in  the  manner 

aforesaid. 

Penalty  on  of-      122.    Any  sheriff  or  coroner,  neglecting  to   execute   and  re- 

ficerfor  foiling  ^^^^.^^  ^^^^^^  notice,  or  making  a  false  return  thereon,  shall  be  sub- 

0°  raakingr'  ject  to  the  same  action  and  penalties,  as  for  neglecting  to  serve, 

flUse  return.—  ^^  ^^^  falsely  returning  process,  directed  to  him  from  the  supe- 

R.S.c.3i,s.     ^.^^  ^^^^^^  ^^  j^^^^  ^^  ^^  prosecuted,  recovered,  and   applied,  as 

actions  and  penalties  are  directed  to  be  prosecuted,  recovered, 

and  applied,  for   neglecting  to  serve,  or  for  falsely  returning 

process  issued  from  the  superior  court.  _ 

Return  on  sci.       ]^23    When  a  scire  focias  shall  issue  to  the  sheriff,  his  return 

•^"■s"i'!Ti?r  thereon  that  the  same  has  been  executed,  shall  be  deemed  suf- 

130.         '       ficient  evidence  of  the  service  thereof. 

Defts.  may  124.    In  the  trial  of  actions  at  law  upon  conti-acts,  either  of 

sur^ies^anT  the  defendants  may  show  in  evidence  that  he  is  surety,  and  if 
juJyOT'jmtice  it  be  satisfactorily  shown,  the  jury  in  their  verdict,  or  the  jus- 
-R°S 'c'si'l'  tice  of  the  peace  in  his  judgment,  shall  distinguish  the  princi- 
131.'   ■  "■    '  •  pal  and  surety,  which  shall  be  indorsed  on  the  execution  by 

the  clerk,  or  justice  of  the  peace  issuing  it. 

Property  of  125.    When  an  execution,  indorsed  as  aforesaid,  shall  come 

principal  to  be  ^o  the  hands  of  any  officer  for  collection,  he  shall  levy  the  same 

a.?dioM'-R"    on  the  property  of  the  principal,  or  so  much  thereof  as  shall 

S.  c.  31,  s.  132.  )3p  necessary  to  satisfy  the  execution,  and  for  want  ot  suth- 

cient  property  of  the   principal,   also  on  the   property  of  the 

surety,  and  make  sale  thereof.     Provided,  nevertheless,  that,  in 

all  such  levies,  a  sale  shall  first  be  had  of  all   the   property  of 

the  principal  levied  on,  before  that  of  the  surety.  _ 

Judgment  for         126.    Whenever  a  suit  shall  be  brought  in   said  courts,  m 

p?aintm-and'     which  security  shall  be  given   for  the  prosecution  thereof;  or 

sureties  on  fail-  when  any  case  shall  be  brought  up  to  said  courts  by  an  appeal 

B"s"r3il     or  otherwise,  from  a  justice   of  the  peace,  or  from  the  county 

133.'   ■     '       court,  in  which  a  bond  for  the  prosecution   of  the  suit  shall 

have  been  given,  and  judgment  shall  be  rendered  against  the 

plaintiff  for  the  costs  of  tlu-  defendant,  the  court,  upon  motion 

of  the  defendant,  shall  also  give  judgment  against  the  surety 

for  said  costs,  and  execution  may  issue  jointly  against  the 

plaintiff' and  his  surety. 

Aftcriudgment      127.    The  defendant,  against  whom  any  final  pdgment  or 

pay  turmouey  decree  for  the  payment  of  inoncy  may  be  rendered  or  made  by 


Chap.  31.]    courts,  county  and  superior.  185 

any  court  of  record,  may  pay  the  whole   or  any  part  thereof  *»  the  clerk.— 
to  the  clerk  of  the  court,  in  which   the   same  may  have  been  fit  ""  ^^'  ^■ 
rendered  or  made,  at  any  time  thereafter,  although  no  execu- 
tion may  have  issued  on  such  judgment  or  decree ;  and  such 
payment  of  money  shall   be  good  and  available  to  the  party 
making  the  same. 

128.  The  clerk,  to  whom  money  shall  be  paid  as  aforesaid,  Clerk  to  pay  it 
shall  pay  the  same  to  the  party  entitled  to  receive  it,  under '°"'fPiir'-\'^°- 
the  same  rules  and  penalties,  as  if  the  money  had  been  paid  mX'uf:  ^' "' 
into  his  office  by  virtue  of  an  execution. 

129.  The  supreme  and  other  courts  ordering  a  judicial  sale,  Speedv  coiiec- 
or  havmg  possession  of  the  bonds  which  may  have  been  taken  t™  of  P™- 
onsuch  sale,  may,  on  motion,  after  ten  days  notice  thereof  in  'JtuaiLXy' 
writmg,  enter  judgment,  as   soon   as  the  money  may  become  ™o"°n-  ' 
due,  against  the  debtors  or  any  of  them,  unless,  for  good  cause 

shown,  the  court  shall  direct  some  other  mode  of  collection. 

130.  No  judge,  in  delivering  a  charge  to  the  petit  jury,  shall  Jiuke,  how  to 
give  an   opinion  whether  a  fact  is  fully,  or  sufficiently  proved,  ch"r 'e' t!5'the 
such  matter  being  the  true  office  and  province  of  the  jury;  but  j'"T--R-  s.  c. 
he  shall  state,  in  a  full  and  correct  manner,  the  evidence  given  ^^' ''  ^^'^• 

in  the  case,  and  declare  and   explain  the  law  arising  thereon. 

131.  The  people,  called  Quakers,  may  wear  their  hats,  in  Quakers  may 
courts  of  judicature  as  elsewhere,  according  to  the  custom  of  couTt-R's  c 
their  sect.  3i,  s.  137. 

Sect.  25.  2  Hawks,  211. 
_  Sect.  ar.    Vemie  :  suit  for  penally,  3  Ire.  9  ;  parties  both  foretqners.  Bus.  250  :  on  oM- 
cial  bond,  2  Ire.  209.     Plea  to  jurisdiction,  3  Ire.  543.  -'        ^        '  '        M 

Sect.  38.  State  may  sue  in  antj  co.,  7  Ire.  48.     Principal  less  than  SlOO,  with  interest 
over,  Sh-e.m,  ipev.358.   Too  notes  together,  i  he.  43.  Liquidated  account  what,  7  Ire. 
14d,  5  Ire.  231.    Objection  how  taken,  5  Ire.  231,  4  lb.  161,  3  Mur.  39  3  Ire  9 
_^^Sect.  39.  1  Dev.  171;  2  D.  &  B.  491;  3  lb.  21.     Suit  vs.  several   defendants,  2  Ii-e. 

Sect.  40.   What  bond  covers,  3  Dev.  57.  Suit  when  dismissed,  2  D.  &  B.  107.  Further  se- 
curity, 1  Jones,  373. 
Sect.  42.  8  Ire.  184. 

Sect.  4.3.  /n  forma  paup.  7  Ire.  191,  11  lb.  22,  2  Dev.  411,  Bus.  Eq.  139,  1  Jones,  534. 
Sect.  45.  13  Ire.  43.  >  i         i  > 

Sect.  46.  4  Dev.  584. 
Sect.  47.  2  D.  &  B.  107. 
Sect.  54.  1  Jones,  122. 
Sect.  57.  (1.)  declaration,  5  Ire.  378,  1  Jones,  495  ;  (10.)  2  Hay.  15;  (12.)  1  D.  &  B. 

Sect.  60.  Witness:  nour-resident,  6  Ire.  76;  unable  to  attend.,  3  Ire.  11;  summoned  to  two 
courts  at  same  time,  Bus.  478. 

Sect.  63.  Deposition:  when  received,  temporary  absence,  13  Ire.  13;  sickness  4  Dev 
240.  Notice :  time  of,  10  Ire.  284 ;  form  of,  11  Ire.  576,  1  Hay.  423,  2  Car.  L.  E.  471, 
4  Ire.  Eq.  427;  taken  on  Sunday,  3  Ire.  307.  Irregularity,  1  Hay.  358,  lb.  359  lb.  381 
Tay.  10,  2  Hay.  290,  Conf.  B.  463,  3  Hawks,  205,  1  Dev.  483,  4  lb.  166;  when  waived, 
1  Hay.  105;  how  taken,  1  Dev.  372,  8  Hawks,  205;  when,  returnable,  2  D.  &  B.  291 

Sect.  71.  1  Mur.  188. 

Sect.  73.  3  Hawks,  318;  11  Ire.  22. 

Sect.  74.  11  Ire.  55. 

Sect.  75.  Cbsts :  judgment  on  one  count,  1  ,Iones,  623,  7  Ire.  Ill ;  one  of  several  deft's 
acquitted,  1  Jones,  225,  lb.  487,  1  Car.  L.  R.  515.  Party's  omn  costs,  1  Dev.  146,  4  Ire.  131. 
Judgment  quando,  1  Dev.  228,  1  Mur.  502.  Infant,  1  Dev.  431.  Mandamus,  1  D.  &  B.406. 
W  absent  witness,  N.  C.  T.  R.  265 ;  executors,  4  Dev.  581.  Persons  not  regular  parties,  1 
U.  &  B.  173.  On  abatement  by  death,  1  Dev.  99.  Arrest  of  judgment,^  Dev.  3S6.  When 
deft  s  sever  in  pleas,  2  Ire.  66.     Peace  warrant,  1  Jones,  550. 

Sect.  76.  2  Ire.  72. 

Sect.  77.  Set-o^ff:  what,  6  Ire.  22,  lib.  401,  lb.  399,  7  lb.  256,  4  Dev.  92;  between 
whom,  6  Ire.  338;  assignees,  11  Ire.  505,  lb.  331,  13  Ire.  75,  Bus.  40,  2  D.  &  B.  283,  4  Dev.. 
619;  a(/mi«'r  t'.  arfmm'r,  3  Ire.  268. 

16* 


186 


COURTS    OF   EQUITY. 


[Chap.  32 


Sect.  82.  13  Tro.  1S3;  lb.  165;  Bus.  206:  3  Ire-  381. 
Sf.ct.  90.  Fui-m  (fjwigmcnt  onptml  bond,  13  Ire.  212. 
Sect.  94.  1  Ire.  332. 
Sect.  99.  11  Ire.  391. 

Iect'  m'  1  "e  «!;T6.  &  B.  9;  4  Ire.  629;  2  D.  «c  B.  138.    VM  j,^gmenU  3  Dev. 
160  1  lb   ISV,  ID.  1  B.  Eq.  568,  4  Hawks,  283.      Wh.n  jud.jm.nt  .nlendcd,  4  Dev.  295. 
Sect.  105. 's  Ire.  480;  13  lb.  112. 
Sect.  109.  7  Ire.  387 ;  2  Jones,  03. 

Skct  lis"  "I'ev  387';  4  lb.  305 ;  6  Ire.  98.     Form  of  order,  8  Ire.  195. 

Iect  "i8:  1  D?&  B.  377.     Form  of  transcript,  8  Ire.  344 ;  6  lb  236 

Sect.  121.  Process  directed  to  a  slieriff  who  is  ajparti/,  void,  13  Ire.  2o. 

Sfct  124.  8  Ire.  Eq.  208.  „ 

Sect:  125    13  Ire.  483;  1  D.  &  B.  44;  1  Ire..  216;  lb.  389.  ,,,.,,  ^   &  B   390 

Sect.  130.  7  Ire.  27;  13  lb.  404.     Jf  m  itstimony,  2  Dev.  415,  lb.  4o2,  2  D.  i,  B.  390. 


CHAPTER    32, 


COURTS  OF  EQUITY. 


Section 

1.  Court  of  equity  established.    Powers 

of. 

2.  Style  of  the  court. 

3.  Kules  of  court. 

Rule  1.  Plaintiff  may  file  his  bill  at 

any   time.      Penalty   of    subpoena. 

Capias  when  to  issue.    Form  of  writ. 

Proviso  as  to  executors  and  others. 

Eule  2.  Subpoena  and  copy  of  bill  to 

he  served  ten  days  before  court. 
Kule  3.  If  defendant  fail  to  appear  and 
answer,  &c.,  bill  taken  as  confessed. 
Further  time  allowed  for  cause.    In 
all  cases  time  may  be  enlarged  for 
pleading. 
Kule  4.  Publication  six  weeks  for  non- 
residents, and  defendants  not  found. 
If  defendant  fail  to  appear,  bill  taken 
as  confessed ;    And  court  may  de- 
cree. 
Provisos.  (1.)  Security  to  be  given  for 
return  of  property,  in  case  defendant 
appeai-s  and  reverses  decree: 
(2.)  In  case  of   satisfaction   decreed 

out  of  sequestered  property. 
(3.)  If  defendant  appear  may  answer 
bill  on  terms.    Within  what  time  to 
appear; 
(4.)  Or  decree  shall  be  confirmed. 
(5.)  What  to  be  done  if  suit  has  been 

removed  to  supreme  court. 
(C.)  No  decree  against  non-resident, 
unless  cause  of  suit  arose,  or  prop- 
erty in  question  be,  iu  this  State. 
Kule  6.  Cause  set  for  hearing  within 
two  terms  after  replication. 


Section 

Kule  6.  All  evidence  to  be  in  writing. 
Clerk  and  master,  commissioner  to 
take  depositions. 
Kule  7.  Answers,  &c.,  taken  by  judge, 

or  by  magistrate  on  commission. 
Eule  8.  Injunction,  sequestration,  and 

ne  exeat  may  issue. 
Rule  9.  Issues  of  fact,  when  tried  by 
jury. 
Rule  10.  Costs  at  discretion  of  court. 

Except,  &c. 
Rule  11.  Further  security  may  be  re- 
quired of  defendant. 
Rule  12.  Decrees,  &;c.,  executed  by  at- 
tachment, or  otherwise. 
Rule  13.  matter  arising    after  issue 

pleaded  puis  darrein. 
Rule  14.  Venue  of  suits  in  equity. 
4.  Executions  to  issue  and  bind,  as  at  law 
6.  Decree  for  costs  against  plaintiff  ana 
his  surety. 

6.  Plaintiff  dying,  his  representative  may 

become  party. 

7.  Defendant  dying,   his  representative] 

may  become  party. 

8.  Answer  of  deceased  defendant  to  bo 

the   answer   of   his    representative, 
when. 

9.  Proceedings,  when  further  answer  is 

required  of  representative. 

10.  If  he  will  not  answer  or  disclaim,  bill 

to  be  taken  as  confessed,  &c. 

11.  Suit,   in  certain    cases,   revived    by 

defendant  against  codefendant's  rep- 
resentatives. 

12.  Proceedings  in  such  case. 


Chap.  32.] 


COURTS    OF    EQUITY. 


187 


Section 

13.  Proceedings  enrolled  when,  and  what 

part  of  them. 

14.  Injunction  not  to  issue  for  a  greater 

sum  than  sworn  to,  nor  without  se- 
curity. 

15.  Nor   but   within    four    months    after 

judgment,  except,  &c. 

16.  Money  deposited  on  obtaining  injunc- 

tion, paid  over  on  security. 

17.  Injunction  dissolved,  judgment  ren- 

dered on  bond.  Damages  uncertain, 
how  ascertained. 

18.  Injunction   against  judgment  of  the 

State,  when  to  issue. 

19.  Infant    and    non    compos   defendants, 

being  non-residents,  to  have  a  guar- 
dian. Allowed  three  years  after  de- 
cree, to  appear. 


Section 

20.  Causes  removed  to  supreme    court, 

when.  Parol  evidence  not  to  be  re- 
ceived in  supreme  court,  except,  &c. 

21.  Further  provision  for  removal  of  equi- 

ty causes. 

22.  Bills  of  review  and  petitions   to  re- 

hear brought  in  five  years  after 
decree.  Saving  for  infants  and 
others. 

23.  Clerk  and  master  may  convey  title,  in 

all  cases  of  sale  decreed. 

24.  Decree  in  certain  cases,  to  be  a  con- 

veyance of  title. 

25.  Decree  regarded  as  a  deed. 

26.  Copy  from  register's  office  evidence. 

27.  How  decree  registered. 


1.  Each  superior  court  of  law  shall  also  be  and  act  as  a 
court  of  equity  for  the  same  county,  and  possess  all  the  powers 
and  authorities  within  the  same,  that  the  court  of  chancery, 
which  was  formerly  held  in  this  State  under  the  colonial  gov- 
ernment, used  and  exercised,  and  that  are  properly  and  right- 
fully incident  to  such  a  court,  agreeable  to  the  laws  and  usages 
now  in  force  and  practice. 

2.  Such  court,  in  all  equity  proceedings,  shall  be  styled  and 
called  the  court  of  equity  for  the  county  in  which  it  is  held. 

3.  The  rules  and  methods  of  proceeding  in  said  court  shall 
be  as  follows,  to  wit :  — 

Rule  1. —  The  plaintiff  may  file  his  bill  in  the  clerk's  office 
at  any  time,  and  thereupon  the  clerk  shall  issue  to  any  county 
ill  the  State  where  the  defendants  or  any  of  them  reside,  the 
usual  writ  of  subpojna  in  chancery  for  the  defendant  to  ap- 
pear, &c.,  upon  pain  of  an  attacJiment  issuing  against  his  person, 
and  such  other  process  of  contempt,  as  the  court  shall  award. 
And  when  the  plaintiff  shall  specially  state  his  debt  or  dam- 
ages and  inake  oath  thereto,  before  any  judge  in  the  State,  or 
before  the  clerk  and  master,  the  clerk  shall  issue,  with  the  sub- 
poena, a  writ  directed  to  the  sheriff  of  the  county,  where  the 
defendant  is  supposed  to  reside,  as  follows,  to  wit:  — 

The  State  of  North  Carolina,  to  the  sheriff  of  county, 

greeting. 

You  are  hereby  commanded  to  take  the  body  of  ,  late 

of  your  county,  (if  to  be  found  in  your  county,)  and  him  safely 
keep,  so  that  you  have  him  before  the  judge  of  the  court  of 
equity  for    the  county  of  on  ne.\t,  or  till   he 

shall  give  you  good  and  sufficient  security  in  the  sum  of 
dollars,  (which  sum  is  hereby  directed  to  be  double  the  dam- 
ages suggested  on  oath  in  the  bill,)  to  appear  and  answer  at 
the  said  court,  on  the  day  aforesaid,  to  a  bill  in  equity  filed 
against  him  by  :   And  this  you  shall  in  nowise  omit 

at  your  peril.     Witness  clerk  and  master  of  the  said 


Courts  of  equi- 
ty est.ablished. 
Powers  of. — R. 
S.  c.  32,  s.  1. 


Style  of  the 
court. — R.  S.  c. 
32,  s.  2. 

Rules  of  court- 
Plaintiff  may 
file  his  bill  at 
any  time. 


Penalty  of  sub 
poena. 


Capias  when  to 
issue. 


188  COURTS    OF   EQUITY.  [ChAP.    32. 

court,  at  office,  the  day  of  and  in  the  year  of 

the  independence  of  the  State. 
Proviso  as  to  Provided,  That  such  writ  shall  not  issue,  except  by  special 
executorsand  Q^jg^  ^f  Q,^g  of  the  judges  of  the  State,  against  any  executor, 
c^^'r^i-  '  administrator,  or  heir  at  law,  who  is  sued  as  such. 
Subpo-na  and  Rule  2.— At  the  time  of  serving  the  subpoena,  a  copy  of  the 
copy  of  bill  to  jjjjj  ^\^^iy  jjg  delivered  to  the  defendant,  and  such  service  and 
days  brfnrr  delivery  shall  be  ten  days  before  the  appearance  term,  other- 
coirt— R.  S.     ,„:^g  ^jjg  defendant  shall  not  be  bound  to  appear  until  the  suc- 

c.  32,  s.  4.  "  , . 

ceeding  term. 
If  defendant  Rulc  3.  —  If,  on  due  service  as  aforesaid,  or  in  the  manner 
fail  to  appear  provided  by  publication,  the  defendant  shall  not  appear  and 
&c,  wuTaken  answer,  plead  or  demur,  agreeable  to  the  practice  in  chancery, 
as  confessed.  ^^^  ^^^^^^  ^f  ^.^^^^  tl^g  bjH  shall  be  taken  as  confessed,  and  ap- 
Furthertime  pointed  to  be  heard,  ex  parte,  at  the  ensuing  term.  Provided, 
t^t^"'  hoivever,  that  if  the  defendant,  at  the  next  term,  shall  offer 
sufficient  excuse  to  the  court  for  such  default,  the  order  shall 
be  discharged,  and  he  may  be  admitted  then  to  plead,  an- 
In  all  cases  g^^,e,.  or  demur;  and  in  all  cases  such  time  shall  be  allowed, 
'e"/fo,'  for  the  pleadings  on  both  sides,  and  such  day  appointed  for  the 
pleadfng.-R.    hearing,  as  the  court  shall  direct. 

Pubiic'a'tLtsix      Rule  4.  — If  at  the  time  of  filing  the  bill,  any  defendaiit 
■weeks  for  non-  g^aH  be  or  afterwards  and  before  service  shall  become,  a  resi- 
dS-mls"not  dent  of  another  State  or  country,  or  shall  for  any  cause  be  so 
to  be  found.      absent  from  his  usual  place  of  abode,  that  process  cannot  be 
personally   served  on  him,  and  the  same  shall  appear  to  the 
court,  or  be  proved  by  affidavit  before  the  clerk  and  master, 
then  notice  of  the  filing  of  the  bill,  published  in  some  Gazette 
printed  in  the  State   and  in  other  Gazettes  where  the  court 
may  so  direct,  for  six  weeks,  (or  for  any  longer  time  when  the 
court  may   so   order,)   shall   be   deemed  good   service  on  the 
defendant;  and,  on  proof  of  such  publication,  the  court  may 
Ifdeft.faiito    proceed  as  if  process  had  been  personally  served  on  him,  and 
tE'as'!!-     he  had  made  default  in  his  appearance,  and  may  order  the  bill 
fe^sed.  to  be  taken  as  confessed,  and  make  decree  thereupon  as  shall 

de"crer"""'^  be  deemed  just;  and  may  thereupon  issue  process  to  compel 
the  performance  of  the  decree,  either  by  execution,  as  herein- 
after provided,  to  satisfy  the  demand  of  the  plaintifi  ;  or  by 
causing  the  possession  of  the  estate  and  effects  demanded  by 
the  bill  to  be  delivered  to  the  plaintiff,  or  otherwise  as  the 
nature  of  the  case  may  require.  Provided,  nevertheless :  — 
Provisos  First,  that  when  the  defendant  shall  reside  out  of  the  State 

1.  Security  to-  at  the  time  of  filing  the  bill,  and  shall  not  actually  appear  and 
tol'ofproprr:  defend,  the  plaintiff,  before  executing  the  decree  shall  give  suf- 
ty,  in  case  tlcft.  flcient  security  in  such  sum  as  the  court  shall  think  proper,  to 
vS''decr''ee''  abide  such  order,   touching    the   restitution   of  the   estate  or 

effects,  as  the  court  shall  tliink  proper  to  make  concerning  the 
same,  upon  the  defendant's  appearing  and  petitioning  to  have 
the  cause  reheard,  and  paying  to  tiie  plaintiff  such  costs  as  the 
court  shall  order. 

2.  In  case  of         Secondly,  upon  the  like   security   being  given,    the    court, 

Batisfactiou  de- 


Chap.  32.]  courts  of  equity.  189 

when  a  sequestration  shall  have  issued,  may  order  the  decree  creed  out  of 
to  be  satisfied  out  of  the  estate  and  effects  sequestered  ;  but  i f  ^'J.'^l'Je' j?'''^ 
such  security  shall  not  be  given,  the  property  sequestered  shall  '""'"^'  ^' 
remain  under  the  direction  of  the  court,  to  abide  its  further  order. 

Thirdly,  if  any  such  non-resident  defendant  as  last  afore- pj,"'!jj;  X 
said,  against  whom  such  decree  shall  have  been  made,  or  his  swerbiiio'n 
representative,    shall   afterwards    appear   and    petition    to    be  '"'"^" 
heard,  he  shall  be  permitted  to  answer  the  plaintiff's  bill,  upon 
paying,  or  securing  to  be  paid,  such  costs  as  the  court  shall 
adjudge  ;  and  the  suit  shall  proceed  in  like  manner,  as  if  such 
defendant  had  appeared  in  due  season,  and  no  decree  had 
been  made. 

Provided,  that  the  defendant  or  his  representatives  shall  so  '^yit'i'n  what 
appear,  within  one  year  after  a  written  notice  of  the  decree  ""'' '""''P''"" 
shall  have  been  given  to  him  or  them;  and  within  five  years 
after  the  making  of  the  decree,  when  such  notice  shall  not  be 
given. 

Fourthly,  if  such  defendant  or  his  representatives  shall  not  ^-  Or  decree  to 
appear  within  the  times  respectively  above  mentioned,  the  ''"  '=™^'™'''^- 
court  shall  then,  by  order,  confirm  the  decree  against  the 
defendant,  and  against  all  persons  claiming  under  him,  by  vir- 
tue of  any  act  done  subsequent  to  the  commencement  of  the 
suit,  and  may  make  such  further  order  in  the  premises  as  shall 
be  just  and  reasonable. 

Fifthly,  if  the  suit  in  which  such  non-resident  person  may  5-  What  to  be 
be  a  defendant  shall  be  removed  to  the  supreme  court,  and  b™,' remoleT 
the  decree  be  made   in    that   court,  then,  upon    his   petition '» supreme 
to  be   heard,  the  record,  or  a  transcript  thereof,  shall  be  re- "'""''■ 
moved  back  to  the  original  court,  that  the  case  may  be  pre- 
pared for  hearing,  as  is  provided  when  the  record  has  never 
been  removed;    and   when    the    case    may  be   set   for   hear- 
ing, it  shall  be   removed  to  the  supreme  court,  which  shall 
make  such  decree  therein,  as  if  no  decree  had  before  been 
made. 

Sixthly,  provided  further,  that  this  chapter  shall  not  be  con-  6.  No  decree 
strued  to  make  good   any  proceedings  against  a  defendant,  "S^'jist  non- 
residing,   at  the  commencement  thereof,  without  the   State ;  [essr&c^^E"  S. 
unless  the   ground   or  cause  of  action,  or  the  transaction  on '''•  ^^' '^^  *• 
which  the  bill  is  brought  took  place,  or  the  property  in  contro- 
versy may  be,  within  the  State. 

Rvle  5.  —  "Upon  issue  joined  by  replication,  the  parties  shall  Cause  set  for 
prepare  the  cause  to  be   set  for  hearing  at  the  second  term  i'f-^"ng  "'thin 
thereafter,  unless  the  court,  for  good  cause,  shall  enlarge  the  replicatiiu?"^' 
time. 

Rvle  6.  —  The  testimony  of  all  witnesses  shall  be  reduced  ah  evidence  to 
to  writing ;  and  depositions  in  equity  shall  be  taken  under  the  c°.-indm.*com'r 
same  rules  as  depositions  at  law  :  and  every  clerk  and  master  •»  '•■^^•^  deposu 
shall  be,  ex  officio,  a  commissioner,  to  take  depositions  to  be  32"s7.-m2' 
read  in  any  suit  in  his  court.  c.so.  ' 

Rule  7.  —  Commissions  to  take  the  plea,  answer,  or  demur-  Answers,  &c. 
rer  of  a  defendant  may  issue  to  any  justice  of  the  peace,  who,  Ir  by  ma^s-^"' 


190 


COURTS   OF   EQUITY.  [ChAP.    32. 

tmteoncom-  for  that  purpose,  shall  have  the  power  of  a  commissioner  in 
nfri^-"- chancery;  and  any  judge  of  the  superior  or  sapreme  court 
"  ■  may  grant  such  commission,  or  may  hmiself  take  the  plea, 
answer,  or  demurrer  of  the  defendant, 
iniunction  se-  RjiU  8.  -  The  judges  of  the  courts  of  equity,  and  likewise 
qSS,  any  of  the  judges  of  the  supreme  court,  may  grant  wri  s  of 
XIs^^Ie.  injunction,  of  sequestration,  and  of  ne  exeat,  subject  still  to 
s.  J.32,s.4.     the  control  of  the  court;  but  a  ne  exeat  shall  not  issue  where 

sufficient  bail  has  been  taken  for  the  party's  appearance. 
Issues  of  fact,  Rule  9.  -  The  court  may  direct  that  issues  of  fact  shall  be 
Tvhen  tried  by  ^^^^  ^y  ^  jury,  whenever  it  shall  appear  necessary,  according 
io^sl^'-  ^'  °"  to  the  rules  and  practice  heretofore  observed  in  the  State. 
Costs  «tdiscre-  i^wfc  10.  —  Costs  incurred  in  the  court  shall  be  paid  by 
tiou  of  court.  p-j.j^gj  party,  as  the  court  may  direct,  as  well  in  bills  ol  ais- 
covery  as  in  all  other  cases,  any  present  usage  to  the  contrary 
Except  &c-  notwithstanding.  But  where  the  plaintiff  shall  dismiss  his 
E  S  "c-'Bts.*.  bill,  or  it  shall  be  dismissed  by  the  court  for  want  of  Ffecu- 
-1848,  c.  12.    ^.^^^^  j^g  g^^j^  p^y  ^Q  ^l^g  defendant  full  costs  to  be  taxed  by  the 

Further securi-  ""  EwTe  11.—  The  court  may,  at  any  time  pending  a  suit,  re- 
ty  may  be  re-      yjj.g  further  security  from  the  defendant. 
'^-R%  c  af        Rule  12.  —  The  court  may  execute  its  orders,  sentences,  and 
«-4'       ,   '    decrees  by  attachment,  and  all  such  other  process  and  means 
Se'dby'at-  as  have  been  usuaUy  exercised  by  the  courts  of  equity  m  the 

tachment,  or      g|;ate 

Tclt^n^'  Rule  13.  -  Whenever  any  matter  shall  arise  after  the  cause 
Matter  'arising  ^^^^^  |^j^yg  begn  put  to  Issue,  which  would  have  been  proper  to 
t^^^^u  be  pleaded  if  the  matter  had  arisen  before  issue,  the  same  may 
darrein.  ^e  thereafter  pleaded  as  in  actions  at  law,  and  under  the  same 

Venue  of  suits  ''' Sm/g  14.  —  Suits  may  be  instituted  in  any  county  where 
in  equity.  ^f  ^he  parties  may  reside ;  or  in  the  county  wherein  the 

property  is  situate,  if  it  be  land,  or  of  a  fixed  and  local  nature ; 
if  instituted  elsewhere,  they  may  be  abated  on  plea. 
Executions  to       4.    Where  decrees  shall  be  made  for  any  sum  of  rnoney,  or 
issue  and  bind,  £     ^^g^s  of  suit,  executlou  may  issue  thereon  against  the  par- 
It  c!"'   ty's  body,  or  against  his  goods  and  chattels,  lands  and  tene- 
ments to  satisfy  such  decree  and  costs,  in  the  same  manner  as 
execution  at  law;  and  lands  and  tenements,  goods  and  chat- 
tels shall  be  bound  by  such  decree  and  execution,  in  the  same 
manner  as  they  are  by  judgments  and  executions  at  law. 
Decree  for  5.    Whenever  a  decree  shall  pass  against  the  plamtitt  lor 

Th,Xnd  costs  of  suit,  the  same,  on  motion  of  the  defendant,  may  be 
Ky.-R  s.  entered  against  the  plaintiff's  surety  for  the  prosecution  of 

''•^^''•'-        hiBsuit.  .      .,     c-         fi-    u;ii 

rrffdyinr:, his  6.  When  a  complainant  shall  die  after  the  filing  of  his  bill, 
representative  ujg  j^^j^j  representative  may  carry  on  the  suit,7»-oi'((/cf/  appU- 
PvlTs.  c.  cation^'be  made  to  the  court  by  such  representative,  at  or  before 
82,  s.  9.  the  second  term  after  the  decease  of  such  party. 

Dertdyin;:,his  7.  When  any  defendant  shall  die  after  service  of  the  sub- 
representativo        „^  ^^^^  ^opy  of  the  bill,  the  plaintiff  may  suggest  his  death, 


CHxVP.    32.]  COURTS    OF   EQUITY.  19;[ 

and  issue  a  scire  facias  against  his  legal  representatives,  in  m.v  boc™,e 
tlie  same  manner  and  under  the  same  rules  as  are  used  in  suits  P.'o-V— K- s. c. 
at  law ;  and  on  service  of  the  writ  on  such  representatives,  the  ^^' '"  *' 
suit  shall  stand  revived. 

8.  If  they  shall  not  appear  and  answer  or  disclaim,  after  Answer  of  de- 
bemg  duly  served  with  the  scire  facias,  the  answer  of  the  de-  '^'^^''^d  deft  an- 
ceased  party  shaU  be  deemed  the  answer  of  his  representa-  scn'tn^ve?'''" 

tive.  ^  .       when. 

9.  If  the  deceased  party  shall  have  answered,  and  the  com-  ProceedinRs, 
plamant  shall  desu-e  to  obtain  a  further  answer  to  the  bill  from  '"''""  '"'■""^'" 
his  representative,  the  matters  whereof  further  ans^^er  is  re-  quiredXp-s. 
quired  shall  be  filed  with  the  master,  and  a  copy  thereof  shall 

be  issued  with  the  scire  facias  and  served  on  the  representa- 
tive. ^ 

10.  In  such  case,  if  the  representative  shall  not  appear  and  ifhe  win  not 
put  in  such  further  answer,  or  disclaim  at  the  next  term,  after  ■'l''^."''"- °';  dis 
being  duly  served  with  a  copy  of  such  matters,  the  said  mat-  tS«;L- 
ters  shall  be  taken  as  confessed,  or  an  answer  may  be  com- ■^''''''"'' '^''■ 
pelled  by  attachment  or  otherwise. 

11.  If  a  defendant  shall  die,  and  the  cause  of  action  does  Suit,  in  certain 
not  survive,  and  the  complainant  shall  neglect  for  two  terms  P"«;SJ^^'^-e<i 
to  revive  the  suit,  the  court  may  order  it  to  stand  revived  upon  ei dtf ts  rf p-^' 
the  petition  of  a  surviving  defendant,  against  the  representa- 
tives of  the  deceased  party. 

12.  In   such    case,   the    surviving   defendant   may   proceed  Proceedings  in 
against  such  representatives  in  the  same  manner  as  a  com-  '"'=''  '='''^- 
plainant  to  compel  them  to  appear,  abide  the  answer  of  the 
decea.sed  party,  or  answer  if  answer  be  required,  or  to  have 

the  bill  or  his  petition  taken  as  confessed  against  them  :  and 
the  court  may,  in  its  discretion,  stay  the  suit  as  against  him, 
until  such  proceeding  shall  have  been  had. 

13._   No  bill,  answer,  or  other  paper  or  proceedings  in  any  Proceedincs 
suit  in  equity,  (interlocutory  decrees  excepted,)    shall   be  eii-  ""'-oiled,  when 
rolled,  until  the  cause  is  finally  decreed  on,  and  then  only  upon  ^t^^^ 
motion  by  the  party  to  take  benefit  by  such  decree ;  and  the  <=•  3^,  s.  lo.     ' 
court  shall  adjudge  what  papers  shall  be  enrolled. 

..ot,^°  .i"J""ction  commanding  the  stay  of  an  execution,  Injunction  to 
except  on  judgments  in  actions  of  detinue,  shall  be  ^ranted  i^'»"«  for  no 
for  any  other  or  greater  sum  than  what  the  complainant  shall  H^^Zto, 
on  oath  declare  to  be  just;  and  not  until  he  shall  enter  into  "">■  without se- 
bond  with  sufficient  security,  before  the  master  of  the  court  ct'-'li'  ^• 
whence  the  injunction  issues,  for  the  payment  into  oflice,  upon        '  ' 
the  dissolution  of  the  injunction,  of  the  sum  complained  of,  and 
all  costs.  ' 


10.  And  whereas,  injunctions  are  often  applied  for,  for  mere  N 
delay,  and  the  facility  of  obtaining  them  sometimes  enables!" 
dehors  to  defeat  creditors  of  their  just  claims;  il  is  enacted, 
that  no  injunction  to  stay  an  execution  shall  issue  but  within 
four  months  after  the  judgment  at  law  is  obtained,  unless  the 
party  applying  therefor  shall,  besides  the  bond  required  in  the 
preceding  section,  deposit,  as  a  further  security,  in  the  office  of 


■\«r  but 


■ss&c— I!. 
.  32,  s.  12. 


^Q2  COURTS   OF   EQUITY.  [ChAP.    32. 

the  master,  the  amount  of  such  judgment  and  costs ;  or  unless 

shdtap,  car  from  the  oath  of  the  complamant,  that  such  ap- 

plicat  on'   arbcen  delayed  in  consequence  of  the  fraud  or  fe^e 

omles  of  the  plaintiff  at  law,  practised  or  made  at  the  time 

Tor  after  obtaining  judgment;  or  that  the  complamant  was 

out  ot    lie  State  at  "the  time  of  entering  up  judgment,    o  that 

applica   on  could.not  be  made  within  the  time  aforesaid 

Mone,  .epcu-  '^6    If,  upon  obtaining  any  injunction,  ^  -^ --i;^^--^'^; 

edonobtaimng  ,         -x  :     ^fy^pg  any  money  whose  collection  l^  enjoined,  tne 

injunction,       depo^it  HI  oinc|       >  J    ^  ^  ^.  ^^  ^^e  plaintiff  at  law, 

p.aoveronse.  same  --y  b;  -^-1  o.d.1^0^^  ^^^^  ^^^^^  .  ^  ^  penalty  double 

le  "a'o  int' with  a^le  sureties,  conditioned  that  he  will  pay  to 
tlie  master  kid  money,  or  any  part  thereof,  according  to  the 
decree  that  may  be  made  in  relation  thereto. 
ininncn  .s- '"l7  When  a^i  injunction  shall  be  dissolved  judgmenshal 
soiveJJudg't  .  .-endered  on  the  bond  given  on  obtaining  the  same,  in  xne 
^-'  -  Lrmanner  as  on  appeal  bonds  ;  except  ^„'f  ^r;;;^:;;;;^:: 
Damiigosun-  ,Kp  rliraao-es  secured  by  the  bond  shall  be  ot  an  uncertain  na 
r/rn«  te  rsirdl  L  refen-Zd  to  the  "-^ter  (if  they  e.i^st  u.  ac- 
S.c.32,s.i3.  '^)  to  report  their  amount;  or  shall  be  inqmica  oi  oy  a 

[uTon  an  Lue  submitted  by  the  court,  and  tried  upon  e 
te  ti  nony  filed  in  the  cause,  and  such  o  her  evidence  as  the 
mi  "may  offer;  and  on  the  confirmation  of  the  report,  or 
Im  of  the  jui'v,  the  court  shall  render  judgment  on  the 

•  '°1S  'NfrnmTclim,"  m,"f  other  process  in  equity,  praying 

S^-^.'t  the  sta^of  ^^S;in  issued  on  til;  part  of  the  State  agamst 
^^tt^.  "^Idl,  shall  be  granted  until  the  -"^i;  --;i^  ^^^  ^^ ^^^ 
-K.S.C.32,  ^  ^  receipt  from  the  treasurer,  or  other  P^i^'f  o"'^"  •;" 
'■"■  fS/ed  to  -  ve  the  same,  showing  the  payment  of  all  such 

part  of  the  fudgment  as,  by  his  bill  of  complaint,  he  shall  not 
on  oath  declare  to  be  unjust. 
,„^.ana„«.°"m   Where  any  de^^if  iit  is  an  i"^^^' ^  J^--- -- 
oomposdefsbe-  ^^  ,esides  out  of  the  State,  having  no  guardian  re^'^"'s 

S=e  Sh"  the  same,  the  court  shall  appoint  -^^;^J^^^. 
a  guardian.  ^„..^„„  ^q  defend  h  s  interest  in  the  suit.  IioiuUct,  ncienin 
^^^!l  E^  thit  such  infant  or  person  non  co-posn^^^ny  nn^ 
Lc  to  appear.  -^  j,^  ^]^,^^  ^ears  after  decree  made,  appear  and  pet  tion  to  h 
r?^'-^-'''  ca  d  vv ith  re^spect  to  the  matter  of  the  decree ;  and  then  the 
S  shall  proceed  in  like  manner,  as  if  such  person  had  aj^- 
nearech  due  season,  and  no  decree  had  been  made.  And  if 
Ls  i  have  been  Removed  to  the  supren^e  court,  the  sam 
p  oc  e  111  gs  shall  be  had  as  provided  in  the  fifth  proviso  of  the 


fourth  rule. 


Causes  re- 
moved to  su- 


'"  oo  Aw  case  pending  in  a  court  of  equity,  and  set  for  hear- 
n,ovea  .o  su-  -^^^^^  ,et  for  hciring  on  a  plea  or  dc murrey,  may,  by  .m  er  o 
l,ren.e  court,     1^^^'  »  removed  to  the  supreme  court  lor  hearing,  upon 

?i^-ev.^ce^^^'^;  appearing  by  alfidavit  or  otherwjs.-  showu^ 

r^L^^rln^that  such   removal   is  required  for  l.'-P--,;'!,  ,/,;;; 

cx<ept,&c.-    ..fjpj  that  no  parol  evidence  be  received  m   he  ^"P  ["  '  ^"""j 
^■'-:'''^}'-\;^C^,  cou'J-t,  or  any  jury  that  may  be  impanelled  for  the 


—1848,  c. 


Chap.  32.]  courts  of  equitt.  jqq 

trial  of  an  issue  of  fact,  except  witnesses  to  prove  exhibits  or 
other  documents. 

21.    In  like  manner,  whenever  any  of  the  defendants  shall  Further provis- 
put  in  a  plea  or  demurrer  to  the  whole  or  part  of  the  bill  and  '™ ''°''. '"■no^al 
the  same  shall  be  set  for  hearing,  so  much  only  of  the  case  0!^.'^ 
may  be  removed  to  the  supreme  court  for  hearinsr,  under  the 
regulations  prescribed  in  the  preceding  section  ;  in^  which  case 
a  transcript  of  only  so  much  of  the  record  shall  be  sent  up,  as 
may  be  necessary  to  present  the  question  or  matter  upon  such 
plea  or  demurrer;  and  the  court,  notwithstanding  such  part 
removal,  may  proceed  to  make  all  necessary  orders  for  prepar- 
.  mg  the  cause  for  trial,  as  if  no  part  of  the  same  had  been 
removed.     And  the  opinion  of  the  supreme  court,  on  the  mat- 
ters rernoved,  shall  be  certified  to  the  court  of  equity,  and  be 
proceeded  on  in  the  same  manner  as  in  cases  of  appeals  from 
interlocutory  decrees. 

he^niln!!^^'''^'  "^  review  or  petition  for  a  rehearing  shall  lie  or  Bills  of  review 
De  allowed,  upon  a  final  decree   in  any  court  of  equity,  but ''",'*P'^""°"''t<' 
within  five  years  next  after  such  decree  shall  have  been  made ;  iffi " 'e™"i^" 
saving,  nevertheless,  the  rights  oi  infants,  femes  covert,  and  per-  ^-"'gVorin- 
sons  noneompos  mentis,  if  they  shall  bring  such  petition  or  bill  e^s.-ur's^t 
within    three    years    after   their  disabilities    shall    have    been^^'^-"- 
removed. 

anSnJr/l"  *'^''''  ^!'''7    '^   "^^""'^  ^"^  ™^'^'='"'  °^  commissioner  Clerk  andmas- 

appouited  by  a  court  Of  equity,  shall  sell  any  real  or  personal '--Av convey 

rle,Sl".l  .       r  ?u"*^  °^  ^  ^^^^"^^  °f  *he  court,  and  the  o&'dt?::^ 

cleik  and  master  shall  be  authorized,  by  a  decree  in  the  cause,  -?«  «•  «■  ^2, 
to  convey  the  title   of  such  estate  to  the  purchaser,  his  deed  ^^ ''• 

nferef  \^  ^^  f '-"'T'  *°  ^""^^^^  ^°  ^'^«  P^^'-^h^^""  '^^'^^  title, 

ownin'.^'^  "'^^^1"V^  '''^'^  P^'^P'^^"*^'  ^^  *1^«  Pa'-ty  Of  record 
owning  the  same,  had  therein. 

24     In  any  suit  wherein  the  court  shall  declare  that  a  party  Decree  in  cer- 
s  entitled  to  the  possession  of  property,  real  or  personal,  the  le" '''"''*'' 
legal  title  whereof  maybe  in  another  Mothers,  parties  to^he  ancerS:- 
suit,and  the  court  shall  decree   a  conveyance   of  such  legaK^T' °- "^• 
h^.^    r]  "u  t^^^'-'^ V°  be  entitled  :  or  where,  for  any  cau" e, 
the  court  shall  decree  that  one  of  the  parties  holding  property 
n  trust  shall  convey  the  legal  title  therein  to  be  heldL  trust 

cU^ZT  P-'f."'  "^'i'^TS^'^  "°*  ^  P^^^y  =  t'^«  co"i-t.  after  de- 
nn«  Ifn  rt  ""'1  decreeing  the  conveyance,  shall  have 
poN^ei  also,  to  be  used  m  its  discretion,  to  declare  in  the  decree 

the"eZf  ^'1.°'" '"Z,"^,/?^'''' "^  ^'^'^  'P'^'Sress  of  the  cause,  that 
the  effect  thereof  shall  be  to  transfer  to  the  party  to  whom  the 
conveyance  is  directed  to  be  made,  the  legal  title  of  the  said 

aTrh2'h°H''  '^^'  '''  *'---- plight,  condition,  and  estat^t 
as     lough  the  conveyance  decreed  was  in  fact  executed;  and 

ben  fif'"f  r  '"*'^^'  ^'''^  P""'^'''  ^^^^^^d  to  execute  or  to  take 
tions  nnH  ^""^f^^"'^'^'  i"  ^nd  to  all  such  provisions,  condi- 
gn..'; fi,  "''"*'  ""^  ™^y  b^  ^^^^^^d  to  attend  the  convey- 
v^vn'nni  ^ame  ma„„er  and  to  the  same  extent  as  the  con- 
veyance would,  if  the  same  were  executed  according  to  the 
17  =" 


194 


Decree  to  be 
regarded  as  a 
di.-ed.— 1850,  c 
107,  s.  2. 


Copy  from 
register's  office 
evideuce. — 
1850,  c.  107, 
s.  3. 


Decree  how 
registered. — 
1850,  c.  107, 


COURT,   SUPREME.  [ChAP.    33. 

decree  And  any  party  taking  benefit  under  the  decree,  may 
have  the  fame  re^diss  at  law  on  account  of  the  rnatter  decreed, 
as  he  mi^ht  on  the  conveyance,  if  the  same  had  been  executed. 

25  ^very  decree,  in  which  the  transfer  oi  title  shall  be  so 
declared  shall  be  regarded  as  a  deed  of  conveyance,  executed 
fn  te  tm  and  by  Capable  persons  notwithstanding  the  wan 
of  capacity  in  any  person  decreed  to  convey,  and  shall  be 
regSered  in  the  proper  county,  under  the  same  rules  and  regi  - 
lations  as  may  be  prescribed  for  conveyances  of  sunilar  piop- 
ertv  executed  by  the  party;  and  all  laws  which  may  be  passed 
fo7e  tendSg  tlfe  iJe  fo;r;gistration  of  deeds,  shall  be  deemed 
to  include  such  decrees,  provided  the  conveyance,  if  actually 
executed,  would  be  so  included.  •   ,  .      <•        f„, 

26.  In  all  legal  proceedings,  touching  the  nght  of  partic. 
derived  under  such  decree,  a  certified  copy  thereof  fi-om  the 
reS  ter's  books  shall  be  evidence  of  its  existence  and  of  the 
matters  therein  contained,  as  fully  as  if  the  same  were  proved 
by  a  perfect  transcript  of  the  whole  case. 

27.^  The  party  desiring  registration  of  such  d^ee  si  all  pro- 
duce to  the  register  a  copy  thereof,  certified  by  he  dci;  of J^^J 
court  in  which  it  is  enrolled,  under  the  sea  of  the  couit,  and 
the  register  shall  record  both  the  decree  and  certificate. 


Sect.  2.   (1.1    Veme,  6  Ire.  Eq.  232.    Suit  u'hen  begun  2V  &  B  Eq.  82    (^3-)  f#eci 
ofden-eepro.  cmf.  12  Ire.  231.     Time  to  amwer,  5  Ire.  Eq.  187.   (10.)  6  ire.  tq. 

Sect.  15.  3  Ire.  Eq.  576. 

Sect.  17.   1  Ire.  Eq.  418;  2  lb.  195. 

Sect.  19.   |^7  "/'/i™"^^™!^^,^ ''^"£  1° B  Eq.  270.    May  he  remm-cd  from  spe- 
onZ  (e™,  6  Ire.  Eq.  290.    Orirjmal  papers  to  be  sent,!  Vcv.hq.Hi  2.  Uliemenwrne  , 
Eq.  319,  5  lb.  340. 


CHAPTER    33, 


COURT,  SUPREME. 


Section 

1.  Tliree  judges  of  the  s\ipremc  court 

appointed. 

2.  To  hold  annually  two  terms  in  Ra- 

leigh, in  June  and  December.  And 
one  in  Morganton,  on  first  Monday 
of  August.  To  sit  till  business  is 
dene.  Name  and  style  of  court. 
To  stand  adjourned  if  no  judge  at- 
tends during  first  week. 

8.  Judges  to  take  and  subscribe  oaths, 
to  be  filed  in  office  of  secretary. 

4.  Two,  in  case  of  sickness,  &c.,  to  hold 
court. 


Section 

5.  Shall  appoint  a  chief  justice.    Their 

powers  and  authorities. 

6.  Jurisdiction  and  power  of  the  court. 

To  render  judgment  on  inspection  of 
the  whole  record.  How  execution 
to  issue  and  be  returnable.  If  to 
the  superior  court,  final  judgment 
to  be  certified  to  that  court.  In 
criminal  cases,  decision  of  supremo 
court  to  be  certified  to  court  below. 
How  that  court  shall  proceed. 

7.  To  have  original  jurisdiction  to  repeal 

grants  or  letters  patent. 


Chap.  33.] 


COURT,    SUPREME. 


195 


Section 

8.  Wliat  decree  the  court  may  make  in 

such  cixse. 

9.  Shall  appoint  a  clerk  for  four  years  at 

each  place  of  session.  His  bond  and 
oaths.     AVhere  office  to  be  kept. 

10.  Causes  from  what  counties  carried  to 

Morganton.  Provisionary  exception 
in  criminal  cases.  Exception  also 
as  to  civil  cases  in  some  of  those 
counties.  Court  may  adjourn  causes 
from  Morganton  to  Raleigh  and  rice 
versa. 

11.  Bills,    &c.,    and   other  parts  of  pro- 

ceedings as  the  court  shall  direct,  to 
be  recorded. 

12.  Clerk's  pay  for  such  services. 

13.  Judges  to  prescribe  rules  of  practice 

for  superior  courts. 

14.  On  appeal  from   interlocutory  judg- 

ments or  decrees,  no  judgment  to  be 
entered.  Opinion  with  instructions 
to  be  certified  to  court  below. 

15.  Exhibits  in  equity  cases  proved  there 

by  witnesses.  Rules  as  to  such  wit- 
nesses. 

16.  Judges   to  deliver   their   opinion    in 

writing.  Certificate  of  decision  nor 
execution  to  be  issued,  till  the  opin- 
ion is  delivered  to  clerk. 


Section 

17.  Court  may  amend  any  proceeding. 
What  amendment  may  allow  after 
cause  is  set  for  hearing.  May  re- 
mand a  cause  for  amendment  below. 
May  amend  by  making  parties.  May 
allow  further  testimony  to  be  taken. 

IS.  When  petition  to  rehear  final  decree 
m.ay  be  filed. 

19.  Bills   of  review   and   writs   of   error 

brought  within  two  years  after  de- 
cree, &c. 

20.  Suits  may  be  dismissed  for  failure  to 

prosecute  after  notice. 

21.  Certificates  of  decisions  transmitted  to 

courts  below  on  the  rise  of  court. 
Execution  for  costs  in  superior  and 
supreme  courts  to  issue  fi-om  those 
courts  respectively.  Clerk  failing, 
twenty  d.ays,  to  transmit  certificates 
of  decisions,  to  forfeit  one  hundred 
dollars. 

22.  In  attorney-general's   absence,   court 

to  appoint  counsel  for  the  State. 

23.  Reporter   of   decisions   annually  ap- 

pointed.    Reports,  how  distributed. 

24.  Marshal    of    court    at    Raleigh,    ap- 

pointed. Sheriff  of  Burke  to  attend 
court  at  Morganton.     Compensation. 


1.  There  shall  be  appointed,  by  joint  vote  of  the  two  houses  Three  judges  of 
of  the  General  Assembly,  three  judges,  being  men  of  integrity  "^''^"P''''"'? 
and  learning  in  the  law,  who  shatl  be  styled  Judges  of  the  er-^E.Tc.'a.s^ 
Supreme  Court  of  North  Carolina,  shall  be  commissioned  by  ^-  ^• 

the  governor,  and  shall  hold  their  offices  during  good  behavior. 

2.  The  court  shall  be  held  by  the  judges  thereof  thrice  '^.'?  '^"''^  ''™"- 
every  year,  — twice  in  the  city  of  Raleigh,  and  once  in  the  inVidgh'T' 
town  of  Morganton,  in  the  county  of  Burke.  The  terms  '^""''  ""''  ^'^" 
held  in  the  city  of  Raleigh  shall  commence  on  the  second  A™^Te  in 
Monday  in  June,  and  on  the  thirtieth  day  of  December,  or  on  *'™'.?'"'to'i>  »" 
the  day  after,  in  case  the  thirtieth  day  be  Sunday.  And  the  August™''"^ "'' 
term  in  Morganton  shall  commence  on  the  first  Monday  in  To^'? ''"  ^usi- 
August,  The  court  shall  sit  at  each  term  until  all  the  busi-  Namemids%ie 
ness  on  the  docket  shall  be  determined,  or  continued  on  good  to™"'''] 
cause   shown.     The   court  shall   bear  the  name  and  style  of  journedVno 

"  The    Supreme    Court    of    North    Carolina,"    and    shall    be  •iuJ^^/g,™''' 
deemed  a  court  of  record;  and  the  papers  and  records  belong-  w'eek.— RS.c. 
ing  to  the  clerk's  office  thereof,  shall  be  constantly  kept  withm  f^'j';.  \^l^f' 
the  city  of  Raleigh,  or  in  the  town  of  Morganton.     Provided,  2S,2i. 
hoKWfcr,  that  in  case  no  one   of  the  judges  shall  attend  the 
term  during  the  first  week  thereof,  at  the  end  of  that  time,  the 
court  shall  stand  adjourned  till  the  next  term,  and  the  causes 
on  the  docket  be  continued. 

3.  The  judges,  before  they  act  as   such,  shall,  before   the  Judges  to  t:ike 


296  COURT,  SUPREME.  [Chap.  33. 

and  snbscribe    governor  or  some  judicial  officer,  take  and  subscribe  the  oaths 
oaths  to  be        appointed  for  the  qualification  of  public  officers,  and  also  an 
sit 'I'Ts.     oath  of  office,  which  shall  be  certified  by  the  officer  taking  the 
same,  and  delivered  to  the  secretary  of  State,  to  be  safely  kept. 
Two,  in  case  of      4.    When  any  one  of  the  judges  is  disabled  from  attending 
sickness, &c.  to  ^^^^  sickness  or  other  inevitable  cause,  two  of  the  judges  shall 
S?o.3rs'.T     hold  the  court,  hear  and  determine  causes,   and  possess  and 
exercise  every  other  authority  which  by  law  may  appertain  to 
said  court,  as  fully,  to  all  intents  and  purposes  as  if  all  the 
judges  of  the  court  were  present. 
Shall  appoint  a      5.  The  judges  shall  appoint  one  of  their  number  to  preside, 
chief  justice,    ^ho  shall  thenceforth  be  styled  Chief  Justice  of  the  bupreme 
Court  of  North   Carolina;  and  they  and  each  of  them  shall 
Their  powers    have,  use,  cxercise,  and  enjoy  the  same  powers  and  authorities, 
andautiiori-      rights,  privileges,  and  preeminences,  in  every  respect,  as  are 
ties.-R.  S.  c.    j^«^^  ^,^^^  ^gg^^  exercised,  and  enjoyed  by  the  judges  respec- 
'  tively  of  the  superior  courts  of  law  and  equity,  except  that  no 

judo-e  of  the  supreme  court  shall  be  authorized  to  hold  a 
supw-ior  court;  and,  for  the  purpose  of  caiTying  such  powers 
and  authorities  into  execution,  each  of  the  judges  of  the 
supreme  court  may  make  any  fiat,  order,  or  issue  any  process, 
and  perform  any  act  which  a  judge  of  the  superior  court 
may  do.  . 

Jurisdiction  6.    The  court  shall  have  power  to  hear  and  determme  all 

and  power  of    questions   at  law,  brought  before  it  by  appeal  or  otherwise 
''°""'  from  a  superior  court  of  law,  and  to  hear  and  determine  all 

cases  in  equity  brought  before  it  by  appeal  or  removal  from  a 
To  render        court  of  equity  ;  and  in  every  case,  the  court  may  render  such 
judK't  on  view  sentence,  judgment,  and  decree,  as,  on  inspection  of  the  whole 
of  the  record.    ^^^^^^^  -^  ^j^^H  appear  to  them  ought  in  law  to  be  rendered 
thereon :  and  shall  have  original  and  exclusive  jurisdiction  in 
repealing  letters  patent,   and  shall  also  have  power  to  issue 
writs  of  certiorari,  scire  facias,  habeas  corpus,  mandamus,  and 
whenceTsued,  all  other  Writs   which   may  be   proper  and  necessary  for  the 
and  where  re-  gxercisc  of  its  jurisdiction,  and  agreeable  to  the  principles  and 
turnabie.  ^g^ges  of  law  ;  and  it  may,  at  its  discretion,  make  the  writs  of 

execution  which  it  may  issue,  returnable  either  to  the  said 
court,  or  to  the  superior  court  from  which  the  cause  may  have 
fimu  iudg't^to  been  removed.  Provided,  hotvevcr,  that,  when  an  execution 
be  certified  to  gj^j^jj  ^^,  made  returnable  as  last  mentioned,  a  certificate  of  the 
that  court.  ^^^^^  judgment  of  the  supreme  court  shall  always  be  trans- 
mitted to  the  superior  court  aforesaid,  and  there  be  recorded. 
In  crim'i  cases  And  provided  fiirlker,  that  the  said  superior  court  may  enforce 
cdio  courf  ^c".  obedience  to  the  execution,  and  in  the  event  of  its  not  being 
io«'-  executed,    may    issue    new    or   further   execution    or    process 

thereon,  in  the  same  manner  as  though  the  first  execution  had 
issued  from   (lie   said   superior  court.    And  provided  further, 
How  that conrt  |i^.^(^  j,,  fiiininal  cases,  the  decision  of  the  supreme  court  shall 
^Ilu.'rc^t    be  certified   to  the   superior  court,  from  which  the  case  was 
8-«-  '    transmitted,  which  superior  court  shall  proceed  to  judgment 

and  sentence,  agreeablt!  to  the  decision  of  the  supreme  court 
and  the  laws  of  the  State. 


Chap.  33.]  court,  supreme.  197 

7.  The  supreme  court  shall  have  original  cognizance,  when-  To  have  origi- 
ever  it  shall  be  deemed  necessary,  on  the  part  of  the  State,  to  ;'»iJu'i*;i''^''on 

...     ,  ,.  ,  .•',',  '.        to  repeal  m-aiita 

institute  proceedings  to  vacate  and  repeal  any  grant  or  other  or  ictteia  pii- 
letters  patent  for  fraud,  false  suggestions,  or  other  cause ;  and  42"s~33'  ^'  "' 
such  proceedings  shall  be  by  bill  in  equity,  or  information  in 
the  nature  of  a  bill  in  equity,  exhibited  in  the  name  of  the 
attorney-general  on  behalf  of  the  State ;  and  the  proceedings 
thereupon  shall  be  according  to  the  course  and  practice  in 
equity. 

8.  When,  upon  the  hearing  of  such  cause,  it  shall  be  aseer-  What  decree 
tained  that  such  grant  or  letters  patent  have  been  obtained  by  ZlkTZ^  Zll 
traud  or  false  suggestion,  or  against  law  in  any  other  respect,  ease.— E.  s.  c. 
the    court    shall    declare    the    same   repealed,    rescinded,    and  *^' ''"  ^*' 
annulled  ;  and  also  take  such  order,  as  the  court  shall  deem 

right  and   proper,  for  cancelling  the   enrolment  of  the   same 
in  the  office  of  the  secretary  of  State. 

9.  The  judges  shall  appoint  a  clerk  for  the  court  held  in  the  Shall  appoint  a 
city  of  Raleigh,  and  one  also  for  the  court  held  in  the  town  of  ^.|f *  ^"""J.^^^ 
Morganton,  who  shall  hold,  each  one,  his  office  for  four  years  ;  pia^e  of  s^el- 
but,  before   undertaking  its  duties,  such  clerk  shall  enter  into  H^'boiui  and 
bond,  with   sufficient  security,  payable  to  the  State  of  North  oaths.""' 
Carolina,  in  the  sum  of  fifteen  thousand  dollars,  conditioned 

for  the  faithful  discharge  of  his  duties,  and  for  the  safe-keep- 
ing of  all  records  committed  to  his  custody,  which  bond  shall 
be  lodged  with  the  secretary  of  State ;   and  he  shall  also,  be- 
fore said  judges,  or  one  of  them,  take  the  oaths  which  are  pre- 
scribed for  clerks  of  the  superior  court.     And  the  clerk  of  the  -miere  office  to 
court,  directed  to  be  held  in  the  city  of  Raleigh,  shall  keep  his  bekept.— R.s. 
office  in  said  city  in  one  of  the  rooms  of  the  capitol  assigned  is«'c'|s~  3 
to  the  supreme  court ;  and  the  clerk  of  the  court  held  at  Mor-        '  "  '  " 
ganton  shall  keep  his  office  at  Morganton. 

10.  All  causes  whatsoever,  carried  into  the  supreme  court  Causes  from 
by  appeeil,  removal,  or  otherwise,  from  a  superior  court  of  law  c.'jHedTo'Mor- 
or  a  court  of  equity  of  the  counties  of  Surry,  Yadkin,  Davie,  ganton. 
Rowan,    Cabarrus,   Mecklenburg,  and   of  the   counties    lying 
westward  of  the  same,  shall  be  brought  into  the  supreme  court 

at  Morganton  for  determination.     Provided,  however,  that  all  rieJ^tS 
criminal  cases  carried  from  the  superior  courts  of  any  of  said  criminal  cases. 
counties,  after  the  second  Thursday  of  August  and  before  the 
thirtieth  day  of  December,  when  the  defendants  or  any  one  of 
them   shall  be  coniined  in  jail,  pending  the  appeal,  shall   be 
brought  to  the  supreme  court  at  Raleigh  for  determination. 
And  provided  also,  that  if  either  party  to  any  cause  which  may  ExcepHon  .also 
be  removed  or  carried  by  appeal  or  otherwise  to  the  supreme  ji^ 'on,e  or'*^"* 
court,  froni  any  of  the  said  counties  of  Surry,  Yadkin,  Davie,  thJse  counties. 
Rowan,    Cabarrus,   or  Mecklenburg,  or  if  both  parties  in  any 
cause  west  of  the  same  shall  prefer  it,  the  said  cause  shall  be 
brought  into  the  supreme  court  at  Raleigh,  to  be  there  deter- 
mined, and  the  presiding  judge  shall  so  order  it.     Causes  of  Court  may  a,i- 
every  kind  carried  to  the  supreme  court  by  appeal,  removal,  or  j™™ j™';;^;* 
otherwise  from   any  other   countv,    shall    be    brought  to    the  toTto  ii-a'eigii 
17'    - 


293  COURT,  suPREstE.  [Chap.  33. 

and  rfce  «e™.  court  at  Ralcigh,  for  determination ;  but  the  court  may,  in 
— I846,c.28,  -^^  (li-^cietion,  adjourn  causes  in  law  and  equity  from  Mor- 
''^'  ganton  to  Raleigh,  and  from  Raleigh  to  Morganton,  for  de- 

termination. 
Bills,  &c.  nnd        H.    In  cases  in  equity  in  said  court,  the  clerlvs  shall  record 
»*3i;%°^^all  bills,  answers,  pleas,  replications,  and  demurrers,  with  all  de- 
Sie  court ;imii  crees,  made  therein,  whether  interlocutory  or  hnal,  together 
cirde/l-K  r  with  the  Opinions  of  the  judges  of  said  court;  and  they  shaU 
c.33,s'8.  ■   ■  only  record   olhcr  parts   of  the  proceedings   in  equity  cases, 
when,  for  sufficient  reasons,  it  may  be  specially  ordered  by  the 
court.    Provided,  that  no  account,  deposition,  or  commission 
to  take  the  same  shall  be  ordered  to  be  recorded,  except  at  the 
expense  of  the  party  requiring  it  to  be  done. 
Clerk's  pay  for      12.    In  estimating  the  allowance  to  the  clerk,  for  making  the 
^RTc'sr'-.  record  as  directe,d,  the  judges  shall  not  exceed  the  sum  of  thirty 
9.   '   '  '     ''"  cents  for  each  page  recorded. 

Judges  to  pre-  13  The  iudtres  of  the  supreme  court  shall  prescribe  and 
prt'ticetr  1  establish,  from  time  to  time,  rules  of  practice  for  ihe  superior 
perior courts,  courts,  which  the  clerk  shall  certify  to  the  judges  ot  the  supe- 
_R.  S.C.  33, s.  ^_.^^.  ^^^^.^^^  ^^,^^  _^l^,_^^  ^^^gg  ^l^g  g^j^^g  to  be  entered  on  the  rec- 
ords of  said  courts. 
On  appeal  from  j^4  When  an  appeal  shall  be  taken  to  the  supreme  court 
]ud'gttc.7no  from" any  interlocutory  judgment  at  law  of  a  superior  court, 
judgment  to  be  ^j.  ^^y  interlocutory  order  or  decree  of  any  court  ot  equity,  the 
Option  with  supreme  court  shall  not  enter  any  judgment  reversing,  affirm- 
instructions  to  j^^  qj.  modifying  the  judgment,  order,  or  decree,  so  appealed 
L'urrbeiot!-  from,  but  shall  cause  their  opinion  to  be  certified  to  the  court 
K.  S.  c.  33,  s.  ijelow,  with  instructions  to  proceed  upon  such  order,  judgmerit, 
^^'  or  decree,  or  to  reverse  or  modify  the  same,  according  to  said 

opinion,  and  the  court  below  shall  enter  upon  its  records  the 
opinion  at  length,  and  proceed  in  the  cause  according  to  the 
instructions. 
Exhibits  in  15    Exhibits  or  other  documents  relative  to  cases  m  equity 

3i7d"there  pending  in  the  supreme  court,  may  be  proved  by  the  parol  tes- 
by  witnesses,  timoiiy  of  witnesses  to  be  examined  in  said  court,  m  the  same 
s^ucifwunesses.  manner  and  under  the  same  rules  as  such  exhibits  or  docu- 
— R.B.C.  33,s.  ijients  maybe  proved  in  the  superior  court;  and  suitors  in 
^^"  said  court  may  have  subpoenas  to   enforce  the  attendance  of 

witnesses,  who  shall  be  liable  to  the  same  penalties  and  actions 
for  non-attendance,  and  be  entitled  to  the  same  pay  lor  travel- 
ling, ferriage,  and    attendance,  as    witnesses   in   the  superior 
court.      Provided,  that  witnesses  attending  the  supreme  court 
shall  be  taxed  in  the  bill  of  costs,  and  paid  by  the  party  on 
whose  behalf  they  may  be  summoned. 
.Judges  to  de-        16.    The  judges  shall  deliver  their  opinions  or  judgments  in 
livertheiropin-^^jti,^       yi,jj  ,l,"e  rcasons   at   full  length  upon  which  they  are 
Sclt"'"!-'-  founded;  and  the  clerk  shall  make  no   entry  upon  the  records 
decision  nor     ^f  ^hc  court,  that  any  cause  depending  therein  is  decided,  nor 
Zedlmollin!  give  to  any  person  a  eertilicate  of  such  decision,  nor  issue  ex- 
ion  of  court  is  p^^fn,,!  for  Uic  costs  iu  such  suit,  until  after  the  opinion  ot  the 
cltr-R-'s.  c.  court  shall  have  been  delivered  publicly  in  open  court,  stating 

33,  6. 13. 


Chap.  33.]  court,  supreme.  199 

at  length  the  ground  and  argument  for  such  opinion,  and  until 
a  written  copy  of  the  same  opinion  shall  have  been  delivered 
to  the  clerk;  which  shall  afterwards  be  filed  among  the  records 
of  the  court  and  published  in  the  reports  of  the  decisions  made 
by  the  court. 

17.    The  supreme  court  shall  have  power  to  amend  any  pro-  Cov.h  may  a- 
cess,  pleading,  or  proceeding  at  law,  either  in  form   or  sub- '"'.jf^r^P™- 
stance,  for  the  purpose  of  furthering  justice,  on  such  terms  as  What'fmend- 
shall  be  deemed  just,  at  any  time  before  final  judgment.    And  "Ifow S 
on  like  purpose  and  terms,  said  court  shall  have  power,  and  it  cause  set^for 
shall  be  its  duty,  any  practice   heretofore  to  the   contrary  not-  ^"""""s- 
withstanding,  to  allow  all  such  amendments  as,  according  to 
the  practice  of  the  court  of  chancery,  may  be  made  without 
settmg  aside   the    order  for  hearing  "the    cause.    And,  on  like  M^iv  remand  a 
purpose  and    terms,  it  shall   be  the  duty  of  the   court  when  L^'dnSntt^ 
amendment  may  be  needed,  which,  according  to  the  course  of  iow. 
the  court,  is  only  allowable  before  the  cause  is  set  for  hearing, 
to  remand  the  same,  on  motion  made  in  due  time,  to  the  intent 
that  application  to  amend   may  be  made  in   the  court  below. 
Also,  to  amend  by  making  proper  parties  to  any  case  in  equity  May  amend  by 
where  the  court  may  deem  it  necessary  and  proper  for  the  pur-  ""'|''"gP'^ 
poses  of  justice,  and  on  such  terms  as  the  court  may  prescribe.  "^'" 
And  also,  whenever  it  shall  appear  necessary  for  the  purposes  May  allow  fur- 
ol  justice,  to  allow  and  direct  the  taking  of  further  testimony  "'"  t<=^'™ony 
in  any  case   in  equity  which   may  be  pending  in   said  court,  R.s' 'fls,'! 
under  such  rules  as  may  be  prescribed.  14,  c.4,s.  i,io. 

18.  Petitions  to  rehear  any  final  decree  made  in  the  supreme  men  petition 
court,  may  be  filed  at  the  terra  when  the  same  is  passed  or  *°  '"^'•^=^''  ^'"^ 
within  twenty  days  after  the  commencement  of  the  next  sue-  meT'  "''^''' 
ceeding  term  ;  provided,  that  nothing  herein   contained   shall 

prevent  the  usual  proceedings  for  enforcing  the  decree. 

19.  Bills  of  review  and  writs  of  error  in  civil  cases,  for  any  Bills  of  review 
error  apparent  in  the  final  decree  or  judgment  of  the   supreme  errorT^Lft 
court,  maybe  brought  in   that  court  within   two  years  after  within  two" 
such  decree  or  judgment  shall  be  recorded  or  enrolled.  ■''"'• 

20.  Suits  and  appeals   pending  in  the  supreme   court,  may  Suits  may  be 
be  dismissed  on  failure  to  prosecute  the  same,  after  a  rule  ob-  jl'^i^'^^ed  for 
tained  for  that  purpose  and  served  on  the  plaintiff  or  appellant  ecmeTafte^'nT 
his  agent  or  attorney,  at  least  thirty  days  before  the  term  next  %''-~^^^^'  "■ 
ensuing  that  of  entering  the  rule ;  when,  if  the  party  shall  fail  '  '  ^"" 

to  prosecute  his  suit  or  appeal,  the  court  shall,  at  the  election 
of  the  adverse  party,  dismiss  the  suit  or  appeal  at  the  costs  of 
the  plaintiff  or  appellant,  or  proceed  to  hear  and  determine  it. 

21.  The  clerks  of  the  said  court  shall,  immediately  after  the  Cerfificates  of 
rise  ot  each  term  thereof,  ti-ansmit  by  some  safe  hand  or  bv '^'''=''-°"-' '™'*- 
maij  to  the  clerks  of  the  superior  courts  of  law  and  courts  oi'^lTl'rT 
equity,  certificates  ot   the  decisions  of  the  supreme  court  in  "«« "^  «»'"'f- 
cases  sent  from  said  courts;  and  thereupon  the  said  clerks  re-  Kx-n  for  cost, 
spectively  shall  issue  execution  for  the  costs  incurred  in  the  '"  f"'"T'"'' 
courts  from  which  the  cases  were  sent;  and  the  clerk  of  the"t"i^f™m 
supreme  court  shaU  issue  execution  for  the  costs  incurred  in  """'^™'"f 


200  COURT,   SUPREME.  [ChAP.    3o. 

that  court,  including  all  publications  in  newspapers  made  in 
the  progress  of  the  cause  in  that  court,  and   by  order  of  the 
same,  and  all   postage  of  letters  which  concern  the  transfer  of 
Clerk  Wlin.     Original  papers.     And  if  either  of  the  clerics  of  the  court,  whose 
f>!4nty  da"-f  to  dutV  it  shall  be,  shall  fail  for  the  space  of  twenty  days  to  per- 
S"Se:\rL-form  the  duty  herein  enjoined  of  transmitting  the  said  cemh- 
fdt sioo-R.    cates  of  deciions,   he  shall  forfeit  and   pay  to  the  party  or 
i842,t'i;l' 3:  parties,  in  whose  favor  the  supreme  court  shall  have  decided, 
one  hundred  dollars.  „  .,      ,  ,  f  xl„ 

In  atfy-genn-s  22.  If  the  attorney-general  should  fail,  at  any  term  of  the 
absence,  court  gunreme  court,  to  attend  to  the  business  which  by  law  is  as- 
^oS't  signed  him,  the  court  may  appoint  some  counseller  learned  in 
St.ate.-is46,  ^he  law  to  discharge- his  duties  during  the  term. 
KepJrti 'of  de-  23.  The  j udges  of  the  supreme  court  shall  annually  appoint 
cisions  annual-  ..„„„^ter  of  the  decisions  thereof,  who,  withm  tive  moiitns 
i,..ppo,nted.     a^^iep^^  ^j^^^  ^^  ^^^,^  ^^^^^^^  ^l^^U  p^.^p^^,  f      ,,,     p,ess  such 

decisions  as  the  court  may  direct  to  be  published   and  shall 

contract  with  some  printer,  to  print  at  the  expense  of  t he  btate 

as  many  copies  as  may  be  needed,  to  be  distributed  by  the 

Kcpon.  how    reporter",  as  follows  :  -  One  copy  for  the  reporter ;  one  for  each 

distributed.-      /  .[      ^,j£i„es  of  the  state;  one  for  the  judge  of  the  court  ot 

?6-«5l!'c!-     the  United  States  for  the  district  of  North  Carolina;  two  to 

i6i.-iics.  1840  ,      denosited  in  the  executive  department;  six  copies  m  ttie 

-'''-'''■  public  library  ;  one  copy  in  the  oilice  of  the  clerk  of  the  court 

of  pleas  and  quarter-sessions  in  each  county  in  the  State     one 

in  the  office   of  the   clerk   of  the   circuit  court  of  the  United 

States ;  one  in  each  of  the  supreme  court  libraries  ;  three  copies 

in  the  library  of  the  university ;  one  copy  tor  the  library  ol  tiie 

supreme  court  of  the  United  States  at  Washington;  as  many 

in  the  executive  office,  as  will  supply  with   one  copy  each 

State  and  territory  of  the  United  States,  to  be  transmitted  to 

the  executive  departments  thereof.  •   x  a; 

Marshal  of  24.    The  judges  of  the  court  may  annually  appoint  an  otti- 

courtatRa-  ^     ^     ^  j^d  marshal  of  the  supreme  court,  removable  at 

,e,gU,appo,nt-    C  .       ^^^^^  ^^^.^^^    ^^^^^^^    ^^^^^^  ^^^  ^^^^^^  ^^^.^^^  i(^  SCSSIOU  lU  the 

city  of  Raleigh  ;  and,  during  its  session  in  Morganton,  the 
Sh-ff  of  Burke  sheriff'  of  Buikc  shall  attend  upon  the  court :  scud  marshal  and 
to  attend  court  sheriff' shall  be  entitled  to  receive  each  two  dollars,  per  day,  lor 
at Mor^mton.     -"  .,,f,-,nl  it+onrlnnoe  on   the  couit,  to  be  paid  by  the 

-'--J  ^:s:^:l::t  f.^£;r  rtie%ierk  'of  tij  resp^^uve 

^^!!::t^\o^:v.l.^e  the  service  is  performed,  which  certihc..t.sh^l 
^-  ^-  state  the  number  of  days  of  attendance,  according  to  the  direc- 

tion of  the  court. 


Skct.  6.  MsdUtion:  bill  0/ rrviuc,  1  Jonc«  Kq.  10;  %  .on.nt,  1  Ire.  623.     Pleadins, 
to  be  iiM,  3  Ire.  5tf.. 

SEcr.  tl.  Q'sts,  1  D.  &  n.  489. 


Chap.  34.]  ckimes  and  punishments. 


201 


CHAPTER   34. 


CRQIES  AND  PUNISHMENTS. 


Section 

1.  Accessories  before  the  fact,  punishable 

as  principals. 

2.  Murder,  burglary,  arson,  and  robbery 

on  the  highway. 

3.  Fighting  a  duel   when  one  party  is 

killed. 

4.  Castration  with  malice  aforethought. 

5.  Rape. 

6.  Crime  against  nature. 

7.  Burning  public  buildings, 

8.  Brealcing  out  of  dweUing-house  in  the 

night,  burglary. 

9.  Killing  a  slave  homicide. 

10.  Stealing    slaves.     Conveying    away 

stolen  slaves.  Property  in  slaves, 
how  laid. 

11.  Aiding  slaves  to  escape  from  State. 

12.  Conveying   free   negroes   from   State 

with  intent  to  sell.  Selling  free  ne- 
groes in  State. 

13.  Conveying  free  negroes  within  State 

with  intent  to  sell  them. 

14.  Malicious  maiming. 

15.  Bigamy. 

16.  Circulating     seditious      publications 

among  slaves  and  free  negroes. 

17.  Endeavoring   to    excite    insurrection 

among  slaves  or  free  negroes  by 
words. 

18.  Servants   embezzling  their    master's 

goods,  &c. 

19.  Brealcing  prison. 

20.  Stealing  or  robbery  of  b.ank-notes  and 

other  securities. 

21.  Stealing  growing  produce. 

22.  Benefit  of  clergy  abolislied. 

23.  None  to  be  p.ardoued  of  other  offences 

by  conviction  and  punishment. 

24.  Jlanslaughter,  first  ofl'ence. 

25.  Second    ofl'ence.     Prior    conviction, 

how  shown. 

26.  Distinction  between  petit  larceny  and 

grand  larceny  abolished.  Punished 
as  petit  larceny. 

27.  Felonies  not  punished,  by  particular 

statutes,  how  punishable. 

28.  Concealing  birth  of  a  child. 

29.  Forfeiture  for  suicide  abolished. 

30.  Burning  bridges,  and  houses  not  de- 

positories of  archives,  &c.  Attempt- 
ing to  burn  bridges,  and  certain 
houses,  &c. 


Section 

31.  Stealing  or  obliterating  proceedings 

and  records  of  court.    Not  necessary 
to  allege  ownership  or  v.ilue, 

32.  Stealing,    destroying,    or    concealing 

wills  of  living  or  deceased  persons. 

33.  Buying  and  selling  ofEces. 

34.  Briberj'  of  jurors. 

35.  Sheriif   or    other  ofiicer  suffering  a 

criminal  to  escape.    What  necessary 
for  State  to  prove, 

36.  Duty  of  tittoruey-general  and  sohci- 

tors  in  such  escapes. 

37.  Breaking  up  or  staying  elections, 

38.  Public    commissioners    forbidden    to 

become  contractors, 

39.  Overseers  of  roads  neglecting  duty, 

40.  Bridges  kept   up   by  mill  owners  in 

certain  cases, 

41.  Unlawful  fences. 

42.  Trespassing    on  public    land.    Tres- 

passer removed  by  sheritf. 

43.  Vagrants.    AiTested,  recognized,  and 

indicted. 

44.  Peddling  without,  or  failing  to  show 

license,  a  misdemeanor, 

45.  Fornication  and  adultery,  a  misde- 

meanor. 

46.  Marrying  a  femsile  under  fifteen,  with- 

out written  consent  of  her  father,  a 
misdemeanor, 

47.  Maiming  without  malice,  how  punish- 

able. 

48.  Sending,  accepting,  or  bearing  chal- 

lenge to  fight  a  duel,  &o.,  a  misde- 
meanor. 

49.  Perjury. 

50.  Subornation  of  perjury. 

51.  Perjury  and   subornation,  in  capital 

cases. 

52.  Perjured  persons  made  infamous. 

53.  Accessories  to  felonies  before  the  fact. 

When,  where,  and  how  tried. 

54.  Accessories  to  felonies  after  the  fact. 

When,  where,  and  how  tried. 

55.  Accessories  where  principal  is  not  at- 

tainted may  be  punished. 

56.  Pieceivcrs  of  stolen  goods,  &c.,  of  any 

value. 
67.  Alteringmarksand  mismarking beasts. 

58.  Holding  out  false  lights  on  sea-coast. 

59.  Forgery.     How  punished. 


202 


CRIMES   AND   PUNISHMENTS. 


[Chap.  34. 


Section 

60.  Counterfeiting    bank-notes,     checks, 

public  or  corporation  securities. 

61.  Passinpr,  or  attempting  to  pass,  coun- 

terfeit notes. 

62.  Forging,   issuing,  or  passing  certifi- 

cates of  stock. 

63.  Selling  forged  judgments,  bonds,  &c. 

64.  Counterfeiting  foreign  gold  or  silver 

coins.      Passing,  or    attempting    to 
pass,  them. 

65.  Having  in  possession  instruments  for 

counterfeiting  such  coin. 

66.  Fraudulently  connecting  parts  of  sev- 

eral bank-notes,  &c. 

67.  Cheating  by  false  tokens.    How  pun- 

ished. 

68.  Fraudulent  entries  and  statements  by 

public  treasurer. 

69.  Lotteries  forbidden.    How  punished. 

70.  Sale  of  lottery  tickets  forbidden. 

71.  Faro  tables  prohibited. 

72.  Gaming   tables    of  every  kind  pro- 

hibited. 

73.  Persons  suffering  gaming  tables  to  be 

opened  or  kept  on  their  premises, 
how  punished. 

74.  Gaming  tables  to  be  destroyed;  sher- 

iffs and   others  to  do  so  with  the 
power  of  the  county. 

75.  Betting  or  playing   at  cards  in  ordi- 

narj',  or  retail-house,  prohibited. 

76.  Keeper  of  ordinary  and  retail-house, 

suffering  cards  to  be  played  on  the 
premises,  guilty  of  misdemeanor. 

77.  Money  or  property  staked   may  be 

seized, 

78.  Penalty   on    persons    opposing    such 

seizure. 

79.  Billiard  and  backgammon  tables  ex- 

cepted. 
60.  Marriage   of  free  negro  with   white 
person,  forbidden. 

81.  Enticing  away  and  harboring  runaway 

slaves. 

82.  Teaching  slaves  to  read  or  write,  use 

of  figures  excepted. 

83.  Fire-arms  and  other  weapons  not  to 

be  sold  or  given  to  slaves.    Proviso. 

84.  Trading  with  slaves  on  Sundays, orat 

uiglit,  forbidden. 

85.  Buying  or  receiving  from  slaves,  with- 

out written  permission,  forbidden. 

86.  .Unlawful  sales  to  slaves. 

87.  Certain  sales  to  slaves  of  spirituous 

liquors  forbidden. 

88.  Presumptive    evidence    of   unlawful 

trading  with  slaves. 
69.  Offence  and  punishment  for  unlawful 
trading  with  slaves. 


Section 

90.  Presumptive  assent  of  principal  to 
unlawful  trading  by  his  agent. 

91.  Forged  licenses  to  slaves  to  trade. 

92.  Penalty  of  one  hundred  dollars,  for 
unlawfully  trading  with  slaves. 

93.  Entertaining  slaves  and  free  negroes, 
on  vessels  at  certain  times  forbid- 
den. Punishmeut  on  slaves,  &c. 
On  whites. 

94.  Retailing  spirituous  liquors  without 
license  forbidden. 

95.  Hunting  by  fire  light. 

96.  Accomplice  in  fire  hunting,  giving  evi- 
dence against  his  fellow,  discharged. 

97.  Wilful  injury  to  wells,  &c.  of  water. 

98.  Voting  fraudulently  at  elections. 

99.  Maliciously  obstructing  raih-oads. 
When  death  doth  not  ensue.  When 
death  ensues. 

100.  Mahcious  injuries  to  plank-roads,  turn- 
pikes, and  canals.  Misdemeanor. 
How  punished. 

101.  Wilful  injuries  to  railroads  and  other 
improvements.  Misdemeanor.  Hovf 
punished. 

102.  Removing  or  defacing  tombstones  and 
monuments  over  the  dead. 

103.  Destroying,  defacing,  or  injuring  cer- 
tain houses.  Burning,  injuring,  or 
defacing  churches,  uninhabited,  and 
outhouses.  Burning,  pulling  down, 
or  removing  fences. 

104.  Wilfully  killing  or  injuring  live-stock, 
running  at  large. 

105.  Maliciously  or  wantonly  killing  stock 
in  certain  counties,  punished  as 
larceny. 

106.  Ton  timber  floated  down  Roanoke 
river  to  be  marked,  &c.  Marks,  &c. 
recorded,  where. 

107.  Altering  mark,  or  taking  marked  tim- 
ber with  intent  to  steal,  larceny. 

108.  Mark  first  recorded  to  hold. 

109.  Sales  of  liquor,  traffic,  and  exhibitions 
near  places  of  worship,  forbidden, 
when. 

110.  Sending  letters  containing  menacing 
demands  for  money;  or  threatening 
to  accuse  one  of  infamous  crime  to 
extort  money. 

111.  Malicious  injuries  to  real  estate. 

112.  White  women  not  to  be  branded  or 
whipped. 

113.  Xegligcnt  omission  of  returning  offi- 
cers in  election  of  governor  and 
electors. 

114.  Wilful  neglect  of  olTieers  to  perform 
tlicir  duty  in  election  of  governor 
anil  electors. 


Chap.  34.]  crimes  and  punishments. 


203 


Sectiox 

115.  Ofl'enoes,   jurisdiction  of.     Not  piir- 

doued. 

116.  White  persons  playing  at  cards  witli 

slave  or  free  negro. 

117.  Contempt  of  court,  what  shall  be. 
lis.  Constables  failing  to  execute  process, 


Section- 

or  making  false   i-eturn:   acting  as 
such  without  authority. 

119.  Officers  failing  to  discharge  their  du- 

ties. 

120.  Misdemeanors  by  statute  punished  as 

at  common    law,  unless  otherwise 
directed. 


1.  Evert  person  shall  suffer  death  who  maybe  an  accessory  Accessories  be- 
before  the  fact  to  any  oflbnce  which  now  is,  or  hereafter  may  prulhabie  1. 
be  created,  the  punishment  whereof  is  or  shall  be  death.  principals.— R. 

2.  Every  person  who  shall  be  convicted,  according  to  due  ^s.' ^*''' ^' ^' 
course  of  law,  of  any  wilful  murder  of  malice  prepense,  or  ^iurder,  bur- 
of  any  felonious  burglary,  or  of  any  wilful  burning  of  any  S'cu'obbel^' on 
dwelling-house,  or  any  part  thereof,  or  any  barn  then  having  *l'«'''g''*^'y--- 
grain  or  corn  in  the  same,  or  store,  or  warehouse,  grist  or  saw-  ^''■^■''■^^'^-  ^■ 
mill  house,  or  any  building  erected  for  the  purpose  of  manu- 
facturing any  article  whatever,  or  of  robbing  any  person  in  or 

near  any  public  highway,  shall  suffer  death. 

3.  It  any  person  light  a  duel,  in  consequence  of  a  challenge  Fighting  a  du- 
sent  or  received,  and  either  of  the  parties  shall  be  killed,  then  '''  '!'""•"  I'i 
the_ survivor,  on  conviction  thereof,  shall  suffer  death  ;  and  all-Kf  S.  c.  lii 
their  aiders  or  abettors  shall  be  considered  accessories  before  '•  ^• 

the  fact. 

4.  If  any  person,  of  malice  aforethought,  shall  unlawfully  Castration  with 
castrate  any  other  person,  or  cut  off,  maim,  or  disfigure  any  J]';;;''^  ("2;;'p 
of  the  privy  members   of  any  person,  with  intent  to  murder,  sl'cilsVs.  4.' 
maim,  disfigure,  disable,  or  render  impotent  such  person,  the 

person  so  offending  shall  sufier  death. 

5.  If  any  person  shall  ravish  and  carnally  know  any  female,  Eape.— R.  s. 
of  the  age  of  ten  years  or  more,  by  force  and  against  her  will,  '■  ^^' ''  '^• 

or  shall  unlawfully  and  carnally  know  and  abuse  any  female 
child  under  the  age  of  ten  years,  he  shall  suffer  death. 

6.  If  any  person  shall  commit  the  abominable  and  detest-  Crime  ag.ainst 
able  crime  against  nature,  with  mankind  or  beast,  he  shall  fl""'?'.,"  ^; 
suffer  death.  '  '■  "' 

7.  If  any  person   shall   wilfully   or   maliciously  burn  the  Burning  public 
State  house,  or  any  of  the  public  offices  of  the  State,  or  any  s"e''of :  T  ^• 
court  house,  jail,  arsenal,  clerk's  office,  register's  office,  or  any  ""''■''''■'■ 
house  belonging  to  any  incorporated  town  in  the  State,  or  to 

any  incorporated  company  whatever,  in  which  are  kept  the 
archives,  documents,  or  public  papers  of  such  town  or  corpo- 
ration, he  shall  suffer  death. 

8.  If  any  person  shall  enter  the  dwelling-house  of  another,  Breakinjoutof 
with  intent  to  commit  felony  or  other  ofience,  the  punishment,  ^n^henW™*" 
or  any  part  of  the  punishment,  of  which  said  other  ofience  burgTarv' ' ' 
shall  be  infamous,  or,  being  in  such  dwelling-house,  shall  com- 
mit any  felony,  or  such  other  ofience,  and  .shall,  in  either  case, 

break  out  ot  the  said  dwelling-house  in  the  night  time,  such 
person  shall  be  deemed  guilty  of  burglary. 

9.  The  oflbnce  of  kiUing  a  slave'  shall  be  homicide,  and  Killing  a  slave 


204  CRIMES   AND   PUNISHMENTS.  [CoAP.    34. 

homicide. -R.  shall  partake  of  the  same  degree  of  guilt,  when  accompanied 
S.  c.  34,  s.  9.     ^n^  tijg  lii^e  circumstances,  that  homicide  does  at  common 

law. 
Stealing  slaves.      10.    Every  person  who  shall  steal  any  slave  with  the  intent 
that  the  owner,  or  any  one  having  any  interest  in  such  slave, 
present  or  future,  vested  or  contingent,  legal  or  equitable,  shall 
be  deprived  of  the  use  and  benefit  of  such  slave,  shall  suffer 
Conveying       death.      And    every   person    who,  by  violence,   seduction,  or 
awaystoiea      other  means,  shall  take  and   carry  away  any  slave  with  the 
slaves.  j.|_^  intent,  shall  be  deemed  and  held,  for  every  purpose  what- 

ever, to   have  stolen  such  slave  ;  and  may  be  so  charged  in 
Property  in      the   bill   of  indictment  preferred  for  the  offence.     And  every 
slaves  how  laid,  person  who,  knowing  any  slave  to  have  been  stolen  as  afore- 
rio.'-isigi**:  said,  shall,  with  like  intent,  convey  away,  or  aid  in  conveying 
.35;  1852,0.  87.  a^.^^,ay  gaid  glavc,  shall   suffer  death.     And  in  any  indictment 
under  this  and  the  following  section  of  this  chapter,  the  prop- 
erty in  the  slave  shall  be  well  laid,  if  charged  to  be  the  prop- 
erty of  the  owner,  or  any  one  or  more  of  the  persons  having 
such  interest  as  aforesaid. 
Aiding  slaves        11.    If  any  person  shall  wilfully  carry  or  convey  any  slave, 
to  escape^from  ^^^  property  of  another,  without  the  consent  of  the  owner,  or 
^34%.  li'.    '   the  guardian  of  the  owner,  with  the  intent  and  for  the  pur- 
pose of  enabling  such  slave  to  escape  out  of  this  State,  from 
the  service  of  his  owner,  or  any  one  having  an  interest  in  such 
slave,  present  or  future,  vested  or  contingent,  legal  or  equita- 
ble, or  if  any  person  shall  wilfully  conceal  any  slave,  the  prop- 
erty of  another,  with   such  intent  and  purpose,  the  person  so 
offending  shall  suffer  death. 
Conveying  free      12.    If  any  person  shall  unlawfully  and  wilfully  entice,  or 
stftTwuTin-  carry  or  convey  any  free  negro  or  free  person  of  color  out  of 
tent  to  sell.       ihe  State,  with   the  intent,   such  free  negro  or  free  person  of 
color  to  sell  or  dispose  of  to  another,  or  appropriate  to  his  own 
Selling  free  ne- use,  as  a  slave,  for  life  or  for  less  time;  or  shall,  within  the 
kTc'34'^s'12  liniit^^s  of  the  State,  unlawfully  and  wilfully  sell  or  dispose  of, 
'*'    '  or  appropriate  to  his  own  use,  as   a   slave,  for  life  or  for  less 
time,  any  such  free  negro  or  free  person  of  color,  the  person  so 
offending,  notwithstanding  such  free  person  of  color  may  con- 
sent so  to  be  carried  out  of  the  State  with  such  intent,  or  to  be 
sold  within  the  State  as  aforesaid,  shall  suffer  death.     Andj 
it  is  hereby  enacted,  that  all  free  persons  of  color  in  a  state  of 
apprenticeship,  or  hired  or  sold  for  a  term  of  time,  by  virtue! 
of  the  judgment  of  any  court,  they  and  their  masters,  purchas- '^ 
ers,  and  hirers,  shall  be  deemed  to  be  within  the  provisions  of 
this  section. 
Conveying  free      13.    If  any  person  shall  unlawfully  and  wilfully  entice,  or 
s'tatTwiTini"  carry,  or  convey  away,  froiTi  one  part  of  the  State  to  another 
tentVsiii!—    part  of  the  State,  any  free  negro  or  free  person  of  color,  with 
R.S.c.34,s.n.  ^i^g  intent  such  free  negro  or  free  person  of  color,  either  within 
or  without  the  State,  to  sell  or  dispose  of,  or  to  appropriate 
to  his  own  use,  as  a  slave,  for  life  or  for  any  less  time,  the 
person  so  offending,  notwithstanding  such  free  negro  or  free 


Chap.  34.]  crimes  and  punishments.  205 

person  of  color  may  consent  so  to  be  carried  or  conveyed  v.-ith 
such  intent,  shall  be  deemed  gnilty  of  a  misdemeanor,  and 
on  conviction  in  tlie  superior  court  of  law,  shall  be  fined  not 
less  than  one  hundred  dollars,  nor  more  than  one  thousand 
dollars,  and  shall  be  imprisoned  not  less  than  three  nor  more 
than  eighteen  months.  And  it  is  hereby  enacted,  that  all  free 
persons  of  color  in  a  state  of  apprenticeship,  or  hired  or  sold 
for  a  term  of  time  by  virtue  of  the  judgment  of  any  court, 
they  and  their  masters,  purchasers  and  hirers,  shall  be  deemed 
to  be  within  the  provisions  of  this  section. 

14.  If  any  person  shall,  of  malice  aforethought,  unlawfully  Malicious 
cut  out  or  disable  the  tongue,  or  put  out  an  eye  of  any  person,  maiming,  —  e. 
with  intent  to  murder,  maim,  or  disfigure,  the  person  so  offend-  ^'  "'  ^*'  ^'  ^^' 
ing,  his  counsellors,  abettors,  and  aiders,  knowing  of  and  privy 
to  the  offence,  shall,  for  the  first  offence,  stand  in  the  pillory 
for  two  hours,  and  receive  thirty-nine  lashes  on  his  bare  back  ■ 
and,  for  the  second  offence,  shall  suffer  death.  ' 

:  15.  If  any  married  person  doth  take  to  him  or  herself  an- Bigamy.-E. 
other  husband  or  wife,  while  his  or  her  former  wife  or  hus-  ^-  "■  ^*'  ^-  ^*- 
band  is  still  alive,  the  person  so  offending  shall  be  fined  and 
mipnsoned,  and  receive  one  or  more  public  whippino-s,  and  be 
branded  on  the  cheek  with  the  letter  B.  Provided,  ahvaj/s, 
that  this  section  shall  not  extend  to  any  person  whose  hus- 
band or  wife  shall  continually  remain  beyond  sea  for  the 
space  of  seven  years  together,  nor  to  any  person  whose  hus- 
band or  wife  shall  absent  him  or  herself  in  any  other  manner 
for  the  space  of  seven  years  together,  such  person  not  know- 
ing his  or  her  said  husband  or  wife  to  be  living  within  that 
time.  And  provided  a/so,  that  this  section  shall  not  extend  to 
any  person  who  shall  be,  at  the  time  of  such  after  marria<Te, 
divorced  from  the  bonds  of  matrimony  according  to  the  mode 
established  by  law,  nor  to  any  person  whose  former  marriao-e 
is  declared  by  law  to  be  void,  nor  to  any  person  whose  former 
marriage  was  had  or  made  within  the  age  of  consent. 

16.    If  any  person  shall  wilfully  bring  into  the    State,  with  Circulating  se- 
an   intent  to   circulate,  or  shall  wilfully  circulate   or   nublish  '^^  r""'  P"''"" 
within  the  State,  or  shall  aid  or  abet  the  bringing  intof  or  the  ^'a^^'ISfrfe 
circulation  or  publication  of,  within  the  State,  any  written  or  "'gr'n'^' ®" 
printed   pamphlet  or  paper,  whether  written  or  printed  in   or''     '''     ' 
out  of  the   State,  the  evident  tendency  whereof  is  to  cause 
slaves  to  become  discontented  with  the  bondage  in  which  they 
are  held  by  their  masters  and  the  laws  regulating  the   same 
and  free  negroes  to  be  dissatisfied  with  their  social  condition' 
and  the  denial  to  them  of  political  privileges,  and  thereby  to 
excite  among  the  said  slaves  and  free  negroes  a  disposition  to 
make  conspiracies,  insurrections,  or  resistance  against  the  peace 
and  quiet  of  the   public,   such   person   so   offending  shall   be 
deemed  guilty  of  felony,  and  on  conviction  thereof  shall,  for 
the  first  oflence,  be  imprisoned  not  less  than  one  year,  and  be 
put  in  the  pdlory  and  whipped,  at  the  discretion  of  the  court; 
and  tor  the  second  offence  shall  suffer  death. 
18 


206 


CRIMES   AND   PUNISHMENTS.  [ChAP.  34. 


Kndeavoriug  17.  If  aiiv  person,  by  words,  shall  endeavor  to  excite  in  any 
by  words  to  ex-   ,  r  ^r  person  of  color,  a  spirit  of  insurrection, 

r,'=r  conspiracy,  or  ?ebellion,  he  shall  receive  thirty-nine  lashes  on 
^X^r-R-Vhis  bare  back,  and  be  imprisoned  for  one  year;  and  lor  the 
c.'34,  s.'is.       second  oft'ence  shall  sulfer  death. 

senmitsem-  IS  If  any  servant,  to  whom  any  money,  goods,  or  otner 
bczziing  their  ,  ..  u  or  anv  of  the  articles,  securities,  or  choses  in  action 
t^^at'  tSed  h;  Lction  twenty  o'f  this  chapter,  of  the  value  o 
^^'  '•  "•  five  dollars,  by  his  master  shall  be  delivered  safely  to  be  kept 

to  the  use  of  his  master,  shall  withdraw  himself  from  his  mas- 
ter,  and  go  away  with  the  said  money,  goods,  or  other  chattels, 
or  any  of  the  articles,  securities,  or  choses  in  action  mentioned 
as  aforesaid,  or  any  part  thereof,  with  intent  to  steal  the  same 
and  defraud  his  master  thereof,  contrary  to  the  trust  and  con- 
fidence in  him  reposed  by  his  said  master;  or  if  any  servant, 
bein<-  in  the  service  of  his  master,  without  the  assent  of  his 
master,  embezzle    such    money,   goods,  or  other   chattels,   or 
any  of  the  articles,  securities,  or  choses  in  action  mentioned  as 
aforesaid,  or  any  part  thereof,  or  otherwise  convert  the^  same  to 
his  own  use,  with  like  purpose  to   steal  them,  or  defraud  his 
master  thereof;  the    servant   so    offending   shall   be   publicly 
whipped  not  exceeding  thirty-nine  lashes,  and  be  fined  or  im- 
nrisoned  at  the  discretion  of  the  court.    Provided,  however,  that 
nothing  in  this  section  contained  shall  extend  to  apprentices, 
or  servants,  within  the  age  of  eighteen  years. 
Breaking  pris-       19.    Any  person  who  shall  break  prison,  being  lawfully  con- 
°°-^r-  "•     fined  therein,  shall  be  deemed  guilty  of  a  misdenieanor. 
It'eaiingorrob-      20.    If  any  person   shall  feloniously  steal,  take,  and  carry 
boryofbank-  ^  ,      ^     yobbery,  any  bank-note,  check,  or  order  tor 

r^Xei^'Jf.^re  [oayment  of ^r^oney  issuecl  by,  or  drawn  on  any  bank,  or 
S.  0.  34,  s.  23.  ^^j^^^  society  or  corporation  within  this  State,  or  within  any  ot 
the  United  States,  or  any  treasury  warrant,  debenture,  certifi- 
cate of  stock,  or  other  public  security,  or  certificate  of  stock  in 
any  corporation,  or  any  order,  bill  of  exchange,  bond,  promis- 
sory note,  or  other  obligation,  either  for  the  payment  of  money, 
or  for  the  delivery  of  specific  articles,  being  the  property  of  any 
other  person,  or  of  any  corporation,  (notwithstandmg  any  ot 
the  said  particulars  may  be  termed  in  law  a  chose  in  action,) 
such  felonious  stealing,  taking,  and  carrying  away,  or  taking 
by  robbery,  shall  be  deemed  and  construed  to  be  ielony  ot  the  ; 
same  nature  and  degi-ee,  in  the  same  manner  as  it  would  have 
been  if  the  offender  had  feloniously  stolen,  or  taken  by  ri.bbcry, 
money,  goods,  or  property  of  the  value  of  five  dollars  ;  and 
such  offe^ider,  for  every  such  ollencc,  shall  sutler  such  punish- 
ment and  be  subject  to  the  same  pains,  penalties,  and  disabi  i- 
ties  as  he  should  or  might  have  suffered,  if  he  had  leloniously 
stolen  or  taken  by  robbery  money,  goods,  or  other  property  ot 
the  value  of  five  dollars.  .       ,     .  ,  j 

StrMii„f;  srow-  01  If  any  ijerson  shall  steal,  or  feloniously  take  and  carry 
i"N"'c"'M  7  away,  any  indiaii  corn,  wheat,  rice,  or  other  gi-ain,  or  any 
2^- '  ■   '     '   '  cotton,  tobacco,  potatoes,  or  pulse  growing,  standing,  or  re- 


ClLVP.  34.]  CRIMES   AND    PUNISHxMENTS.  .  207 

mainiiig  nngathered  in  any  field  or  ground,  he  shall  be  deemed 
guilty  of  larceny,  and  punished  accordingly. 

22.  The  benefit  of  clergy,  with  respect  to  persons  convicted  Benefit  of  cier- 
of  felony,  shall  be  abolished:  but  such  abolishment  shall  not  °^' ''''°"''""'' 
prevent  the  joinder  in  indictments  of  any  counts  which  might 

have  been  joined  heretofore ;  and  no  person  convicted  of  fel- 
ony shall  suffer  death,  unless  it  be  for  some  offence  which  was 
excluded  from  the  benefit  of  clergy  before,  or  on  the  day  when 
this  enactment  takes  etlect. 

23.  No  person  hereafter  convicted  of  such  clergiable  felony  None  to  be  par- 
and  sentenced  to  punishment,  or  punished  therefor,  shall  there-  o^ces^  C 
by  be  pardoned  of  any  felony  committed  before  such  convic- conviction "an.l 
tion ;  but  he  may  be  indicted  and  punished  for  the   same  in  F^'t'^^S!'" 

1*1  J  1  I        I  I         1  IV.    D.    C.    o4,    S. 

liKe  manner,  as  though  he  had  never  been   convicted  of  any  28. 
felony  before  that  time. 

24.  Every   person   who    shall  commit  the   crime    of  man-  Jiansiauahter, 
slaughter,  shall  be  punished  by  being  burnt  with  the  mark  of  l^'^'g  °f  "g'^^*'-"^ 
an  M  upon  the  brawn  of  his  left  thumb,  openly  in  court  before  26.   '  '''     '  ^' 
the  presiding  judge,  or,  instead  thereof,  by  a  fine;  and  in  addi- 
tion to  either  punishment,  may,  in  the  discretion  of  the  court, 

be  also  imprisoned  not  exceeding  one  year. 

25.  Every  person  who,  having  been  convicted  of  the  crime  Second  offence. 
of  manslaughter  and  sentenced  thereon,  shall  be  convicted  of  a 

second  crime  of  the  like  nature,  shall  sufter  death  ;  and  in  every 
such  case  of  conviction  for  such  second  offence,  the  prior  con-  Prior  convic- 
viction    of  the    same   person   and   sentence   thereon,  may  be  'jj'o";,''"''' 
shown  to  the  court,  in  the  manner  now  used  in  such  cases  for  ^  °™' 
barring  the  benefit  of  clergy  a  second  time. 

26.  All  distinctions  between    petit  larceny   and  grand    lar-  Distinction  be 
ceny,  where  the  same  hath  now  the  benefit  of  clergy,  is  abol-  clnymKigmnd 
ished:  and  the  offence  of  felonious  stealing,  where  no   other  l^''"^".^  f'Sol- 
punishment  shall  be  specifically  prescribed  therefor  by  statute,  '*'"^' 

shall  be  punished  as  petit  larceny  is.    Provided,  however,  that, 
incases   of  much   aggravation  or  of.  hardened  offenders,  the  P™'f'<"' « 
court  may,  in  its  discretion,  sentence  the  convict  to  be  whip-  ''*"'    ""'™^" 
ped  two  several  times,  and  may  imprison  him  not  exceeding 
one  year. 

27.  Every  person,  who  shall  hereafter  be  convicted  of  any  Felonies  not 
felony    for    which    no   specific    punishment   is    prescribed    by  |;"rticuhu-sn,t- 
statute,  and  which  is  now  allowed  the  benefit  of  clergy,  shall  ptes,  how  pun- 
be  imprisoned  at  the  discretion  of  the  court  not  exceeding  two  '"'"'"*'■ 
years ;  or  if  the  offence  be  infamous,  the  court  may  also  sen- 
tence the  convict  to  receive  one  or  more  public  whippings,  to 

stand  in  the  pillory,  or  pay  a  fine,  regard  being  had  to  the  cir- 
cumstances of  each  case.  « 

28.  If  any  woman  who  shall  be  delivered  of  a  child  shafi,  ComcMm: 
by  secretly  burying  or  otherwise  disposing  of  the  dead  body  of  !l'il'' 2'' '! '']']'''• 
the  said  child,  endeavor  to  conceal  the  birth  thereof,  she  shall  s.30.^'   '     ' 
be  guilty  of  a  misdemeanor,  and  on  conviction  thereof  in  the 
superior  court  shall  be  punished  by  a  fine  not  exceeding  five 
hundred  dollars,  and  imprisonment  not  exceeding  one   year. 


203  CRIMES    AND    PUNISHMENTS.  [ChAP.    34. 

Provided,  that  nothing  in  this  section  contained  shall  be  con- 
strued to  prevent  the  mother,  who  may  be  guilty  of  the  homi- 
cide of  her  child,  from  being  prosecuted  and  punished  for  the 
same,  according  to  the  principles  of  the  common  law. 
Forfeiture  for        29.  No  forfeiture  shall  be  incurred  by  suicide. 
Bur'i^'bridges      30.  If  any  person,  with  intent  to  destroy  the  same,  shaU  wil- 
and  houses,  not  fuHy  and  maliciously  set  fire  to  and  burn  any  public  bridge,  or 
arcTivef&o?^  private  toll-bridge,  or  the  bridge  of  any  incorporated  company, 
'  or  any  fire-engine  house,  or  any  house  belongmg  to  an  incor- 

porated town,  used  for  public  purposes  other  than  the  keeping 
of  archives,  documents,  and  public   papers,  or  any  house  be- 
longing to  an  incorporated  company  and  used  in  the  business 
of  such  company,  and  not  included  in  sections  two  and  seven 
Attemptinr-  to  of  this  chapter  ;  or  if  any  person  shall  wilfully  and  maliciously 
burn  bridges     attempt  to  burn  any  of  the  said  houses  or  bridges,  or  any  of 
houseT&c-K.  the  houses  or  buildings    mentioned  in   the   said   sections  two 
S.c.  34,  s.  16,    and  seven,  the  person  so  oflending  shall  be  deemed  guilty   of 
22-  a    misdemeanor,    and    being   convicted    thereof   shall   receive 

thirty-nine  lashes  on  his  bare  back,  stand  in  the  pillory  one 
hour,  and  be  fined  and  imprisoned  at  the  discretion  of  the 
court. 
Stealing  or  ob-  31.  If  any  person  shall  steal,  or,  for  any  fraudulent  purpose, 
literating  pro-  gj^j^jj  ^^^j-g  ^^^^-^  jj-g  place  of  deposit  for  the  time  being,  or  from 
rioordf  of  any  person  having  the  lawful  custody  thereof,  or  shall  unlaw- 
court.  £^iiy  g^jjjj  maliciously  obliterate,  injure,  or  destroy  any  record, 

writ,  return,  panel,  process,  interrogatory,  deposition,  affidavit, 
rule,  order,  or  warrant  of  attorney,  or  any  original  document 
whatsoever,  of  or  belonging  to  any  court  of  record,  or  relating 
to  any  matter  civil  or  criminal  begun,  depending,  or  terminated 
in  any  such  court,  or  any  bill,  answer,  interrogatory,  deposi- 
tion, atTidavit,  order,  or  decree,  or  any  original  document  what- 
soever, of  or  belonging  to  any  court  of  equity,  or  relating  to  any 
cause  or  matter  begun,  depending,  or  terminated  in  any  such 
court,  every  such  offender  shall  be  deemed  guilty  of  a  misde- 
Not  necessary   meanor ;  and  in  any  indictment  for  such  offence,  it  shall  not 
to  allege  own-  ^^  necessary  to  allege  that  the  article,  in  respect  to  which  the 
-r's?"!?'  offence  is  committed,  is  the  property  of  any  person,  or  that  the 
^-  ^^-  same  is  of  any  value. 

stealing,  dcs-        32.  If  any  person,  either  during  the  life  of  the  testator,  or 
troving.orcon-    f^gj  his  death,  shall  steal,  or  for  any  fraudulent  purpose,  des- 
UvingOT  Je-     troy  or  conceal,  any  will,  codicil,  or  other  testamentary  uistru- 
cen^ed persons,  ^^y^^^  i^g  ghall  be  deemed  guilty  of  a  misdemeanor. 
Buying  and  83.   If  any  person  shall  bargain  or  sell  an  office  or  deputa- 

seiMn,|officeB.  ^Jq,^  ^f  j^,-,  office,  or  any  part  or  parcel  thereof,  or  take  mon- 
s.  zi  "'  ey,  reward,  or  other  profit,  directly  or  indirectly,  or  any  prom- 
ise, covenant,  bond,  or  assurance  for  money,  reward,  or 
profit,  for  an  office  or  the  deputation  of  an  office,  or  any 
part  thereof,  whicli  office,  or  any  part  thereof,  shall  touch  or 
concern  the  administration  or  execution  of  justice,  or  the  re- 
ceipt, collection,  control,  or  disbursement  of  the  public  revenue, 
or  shall  concern  or  touch  any  clerkship  in  any  court  of  record 


Chap.  34.]  crimes  and  punishments.  209 

wherein  justice  is  administered:  or  if  any  person  shall  give 
or  pay  money,  reward,  or  profit,  or  shall  make  any  prom- 
ise, agreement,  bond,  or  assurance  for  any  of  the  said  of- 
fices, or  for  the  deputation  of  any  of  them,  or  for  any  part  of 
them ;  the  person  so  ofliending  in  any  of  the  cases  aforesaid, 
shall  be  deemed  guilty  of  a  misdemeanor,  and  on  conviction 
thereof  shall  forfeit  all  his  right,  interest,  and  estate  in  such 
office,  and  every  part  and  parcel  thereof,  and  shall  be  im- 
prisoned and  fined  at  the  discretion  of  the  court. 

34.  If  any  juror,  by  himself  or  others,  do  take  any  thing  Bribery  of  ju- 
from  the  plaintifi"  or  defendant  in  a  civil  suit  or  others  for  IX'Tst  ^' ''' 
them,  or  from  any  defendant  in  a  State  prosecution  or  others 

for  him,  to  give  his  verdict,  every  such  juror,  and  the  person, 
who  shall  give  such  jm-or  any  fee  or  reward  to  influence  his 
verdict,  or  induce  or  procure  him  to  make  any  gain  or  profit 
by  his  verdict,  shall  be  deemed  guilty  of  a  misdemeanor. 

35.  When  any  person  charged  with  crime  or  misdemeanor.  Sheriff  or  othfir 
or  sentenced  by  the  court  upon  conviction  of  any  offence,  shall  h,!i''fcrimTn'ii 
be   legally  committed   to   any   sheriff,   constable,  or  jailer,  or  to°esxapel""" 
shall   be    arrested    by   any  sheriff,   deputy  sheriff,   or   coroner 

acting  as  sheriff,  by  virtue  of  any  capias  issuing  on  a  bill  of 
indictment,  information,  or  other  criminal  proceeding,  and  such 
sheriff,  deputy  sheriff,  coroner,  constable,  or  jailer,  wilfully  or 
negligently,  shall  suffer  such  person,  so  charged,  or  sentenced 
and  committed,  to  escape  out  of  his  custody,  the  sheriff,  deputy 
sheriff,  coroner,  constable,  or  jailer,  so  offending,  being  thereof 
convicted,  shall  be  removed  from  office,  and  fined   at  the  dis- 
cretion of  the  court  before  whom  the  trial  may  be  had  ;  and  in 
all  such  cases  it  shall   be  sufficient,  in  support  of  the  indict-  ^^'^^  ""^es- 
ment  against  such  sheriff  or  other  officer,  to  prove  that  such  s^tlZ  prove. 
person  so  charged  or  sentenced  was  committed  to  his  custody,  -R-  S-  c.  34, 
and  it  shall  lie  upon  the  defendant  to  show  that  such  escape  ''  ^'^' 
was  not  by  his  consent  or  negligence,  but  that  he  had  used  all 
legal  means  to  prevent  the  same,  and  acted  with  proper  care 
and  diligence.     Provided,  that  such  removal  of  a  sheriff  shall 
not  affect  his   duty   or  power  as    a    collector  of  the    public 
revenue,  but  he  shall  proceed  on  such  duty  and  be  account- 
able, as  if  such  conviction  and  removal  had  not  been  had. 

36.  It  is  hereby  declared  to  be  a  duty  of  the  attorney-gener-  Dutv  of  att'y- 
al,  and  of  the  solicitors,  when  they  shall  be  informed,  or  have  general  and "so- 
knowledge  of  any  felon,  or  person  otherwise  charged  with  any  e's"apes.-R"s! 
crime  or  offence  against  the  State,  having,  within  their  respec-  '=-^'*'  '•^^• 
tive  circuits,  escaped  out  of  the  custody  of  any  sheriff,  deputy 

sheriff,  coroner,  constable,  or  jailer,  to  take  the  necessary  meas- 
ures to  prosecute  such  sheriff",  or  other  officer,  so  offending; 
and  in  such  cases  the  governor  may  be  indorsed  as  prosecutor. 

37.  If  any  person,  by  force  and  violence,  shall   break  up  or  Breaking  up  or 
stay  any  election,  by  assaulting  the   officers  thereof,  or  depriv-  tiois.-lf  s.' o. 
ing  them  of  the  ballot-boxes,  or  by  any  other  means,  such  per-  ^*'  ^■^^■ 
son,  his  aiders   and  abettors,  shall  be  judged   guilty  of  a  mis- 
demeanor; and    upon  conviction    shall   be    imprisoned  three 

18* 


210  CRIJIES   AND    rUNISHMENTS.  [ChAP.    34. 

months,  and  pay  such  fine  as  the  court  shall  adjudge,  not  ex- 
ceeding one  hundred  dollars. 
Public  com-  38.  No  person,  appointed  a  commissioner  or  director  to  dis- 
biddln"to'be-"  charge  any  trust  wherein  the  State  may  be  in  any  manner  in- 
c!>me'"contra'c-  teres'ted,  shall  become  an  undertaker,  or  make  any  contract  for 
^^rs--K- «•  0-  his  own  benefit,  under  such  appointment,  or  be  in  any  man- 
'^'    '  ner  concerned  or  interested  in  making  such   contract,  or  in  the 

profits  thereof,  either  privately  or  openly,  singly,  or  jointly  with 
another;  and  any  person  so  offending  shall  be   deemed  guilty 
of  a  misdemeanor. 
Overseers  of         39.    Every  overseer  of  a  road,  who  shall  be  guilty  of  neg- 
irf  duty"-R:  lecting  any   of  the   duties  imposed  on  him   by  law,  shall  be 
S.c.  34,  S.40.    deemed  guilty  of  a  misdemeanor. 

Bridges  kept  49.  Every  owner  of  a  water-mill,  situated  on  any  public 
CTsYn?ertar'road,  and  also  every  person  w.hosc  duty  it  is  to  keep  up 
cases.— R.  s.  c.  and  repair  bridges  built  across  any  ditch,  drain,  or  canal,  in 
34,  s.  41.  the  manner  prescribed  in  section  twenty-four  of  chapter  101, 

entitled    "  Roads,   Ferries,  and  Bridges,"  who  shall  refuse  or 
neglect  to  keep  up  and  repair,  or  who  shall  suffer  to  remain 
out  of  repair  for  the  space  of  ten   days,   any  bridge  w^iich  by 
law  he  may  be  required  to  keep  up  and  repair,  shall  be  deem- 
ed guilty  of  a  misdemeanor. 
Unlawful  fen-       41.  All  persons  neglecting  to  keep  and  repair  their  fences 
34'T42^''''     during   crop  time,  in   the   manner  required  by  law,  shall  be 
'  '     '  deemed  guilty  of  a  misdemeanor.     Provided,  that  the  concur- 

ring testimony  of  two  indifferent  witnesses  shall  be  necessary 
to  conviction. 
Trespassing  42.    If  any  person  shall   erect   a  building   on   any  public 

-R'^s'lf  sii' lands,  before  the  same  shall  have  been  sold  or  granted 
43.-i8rCc-'  by  the  State,  or  any  lands  belonging  to  the  president  and 
^^•'•*-  du-ectors    of  the    literary  fund   of  North   Carolina,  before  the 

same  shall  have  been  sold  and  conveyed  by  them,  or  cultivate, 
or  remove  timber  from,  any  of  said  lands,  such  person  shall  be 
deemed  guilty  of  a  misdemeanor  ;  and  when  any  person  shall 
be  in  possession  of  any  part  of  said  land,  it  shall  be  the  duty 
of  the  sheriff  of  the  county  in  which  the  land  is  situated,  and 
he  is  hereby  required,  to  give  notice  in  writing  to  such  person. 
Trespasser  re-  commanding  him   to   depart  therefrom   forthwith;  and  if  the 
moved  by  fh'ir.  person  in  possession,  upon  being  so  notified,  shall  not,  within 
43!^is42',c*36;  two   wccks    after  1he   time  of  notice,   remove  tlierefrom,   the 
s-4-       '       '  sheriff  is  required  to  remove  him   immediately,  and,   if  neces- 
sary, shall   summon  the   power  of  the   county  to  assist  him  in 
so  doing. 
Vagrants.— R.       43.    If  any  person  who   has  no  apparent  means  of  subsist- 
—im'c'si'   ence,  or  neglects  applying  himself  to  some  honest  calling  for 
'  '     'the  support  of  himself  aiid   family,  shall  be  found   sauntering 
about,  and  endeavoring  to  maintain  himself  by  gaming  or  other 
undue  means,  any  justice  of  the   county  wherein  such  person 
Arrested,  re-     ^^y  \^f,  ft)nnd,  on  due  proof  made,  may  issue   his  warrant  for 
[adiited.'  ""     such  oli'ending  person,  and  cause   him  to  be  brought   before 
him,  or  some   other  justice,  who  is  hereby  empowered  and  re- 


Chap.  34.]  crimes  and  punishments.  211 

quired,  if  such  person  after  examination  by  him  be  found  to 
be  a  vagrant  as  aforesaid,  to  recognize  him  with  security  for 
his  appearance  at  the  next  sviperior  court  of  the  county,  to  an- 
swer the  charge  of  being  a  vagrant,  and  in  the  mean  time  to 
be  of  good  behavior ;  and  in  case  of  his  neglect  to  give  bail, 
he  shall  be  committed  to  jail.  And  if  he  be  found  guilty  on 
an  indictment  to  be  preferred  against  him,  he  shall  be  fined, 
and  be  also  imprisoned  for  the  space  of  twenty  days,  and  be 
required  to  give  security  for  his  good  behavior  for  such  time 
as  the  court  shall  adjudge. 

44.    If  any  person   shall    unlawfully  hawk  or   peddle  any  PedJlin,?  with- 
goods,  wares,  or  merchandise,  or  shall  fail,  upon  the  applica- °"*;,°J^  J-"p",g"g^ 
tion   of  the   sheriff  or  his  deputy,  or  any  justice  of  the  peace,  a  misd'i-.— R. 
to  show  his  license  as   required  by  law,   he  shall  be   deemed  ''^ "'  ^*'  ^'  *^' 
guilty  of  a  misdemeanor. 

1    45.    If  any  man   and  woman,   not   being  married  to  each  Fornicatioa 
other,  shall  lewdly  and  lasciviously  associate,  bed  and  cohabit  misdemeanor, 
together,  they  shall  be  deemed  guilty  of  a  misdemeanor.    Pro-  J^-  S-  c.  34,  s. 
vidcd,  however,  that  the  admissions  or  confessions  of  one  shall 
not  be  received  in  evidence  against  the  other.  ! 

46.  If  any  person  shall  marry  a  female  mider  the  age  of  Marrying  a  fe- 
fifteen  years,  he  shall  be  deemed  guilty  of  a  misdemeanor.  ™f^  witi^ut " 
Protnded,  that  this  section  shall  not  extend  to  cases  in  which  -nritten consent 
the  father  of  the  female  may  be  living,  and  previous  and  up  miidem^anor.'^ 
to  the  marrying,  shall  have  consented  thereto  in  writing;  and  — K.  S. c.  34,s. 
the  superior  courts  of  law  shall  have  exclusive  original  juris-*'' 
diction  of  the  offence. 

47.  If  any  person  shall,  on   purpose   and  unlawfully,   but  Jiaiming  with- 
without  malice  aforethought,  cut  or  slit  the  nose,  bite  or  cut  1,0^  p'unisba- 
off  a  nose  or  lip,  or  ear,  or  disable  any  limb  or  member  of  any  ijie.— R.  S.  c. 
other  person,  or  castrate  any  other  person,  or  cut  off,  maim,  or     '  " 
disfigure  any  of  the  privy  members  of  any  other  person,  with 

intent  to  kill,  maim,  disfigure,  disable,  or  render  impotent  such 
person  ;  in  any  such  case  the  person  so  ofi'ending  shall,  on 
conviction  thereof,  be  impirisoned  at  least  six  months,  and 
fined  at  the  discretion  of  the  court. 

48.  If  any  person  send,  accept,  or  bear  a  challenge  to  fight  a  Sending,  ac- 
duel,  though  no  death  ensue,  he,  and  all  such  as  counsel,  aid,  bearlnS-'clml- 
and  abet  him  shall  be  deemed  guilty  of  a  misdemeanor;  and  lenge  to  fight  a 
on  conviction  thereof,  shall  be  punished  accordingly,  and,  m'^sdeni'^or.— 
moreover,  be  ineligible  to  any  office  of  trust,  honor,  or  profit  R-  s.  c.  34,  s. 
in  the  State,  any  pardon  or  reprieve  notwithstanding. 

49.  If  any  person  shall  wilfully  and  corruptly  commit  per-  Perjury.— R. 
jury  on  his  oath  or  affirmation,  in  any  suit,  controversy,  mat-  ^' '''  ^*'  ^'  ^  ' 
ter,  or  cause  depending  in  any  of  the  courts  of  the  State,  or  in 

any  deposition  or  affidavit  taken  pursuant  to  law;  or  in  any 
oath  or  affirmation  duly  administered  of  or  concerning  any 
matter  or  thing,  whereof  such  person  is  lawfully  required  to  be 
sworn  or  affirmed ;  every  person  so  offending  shall  be  deemed 
guilty  of  a  misdemeanor,  and  being  convicted  thereof,  shall 
stand  in  the  pillory  one  hour,  receive  one  or  more  public  whip- 


212  CRIMES   AND    PUNISHMENTS.  [ChAP.    34. 

pings,  not  less  than  thirty-nine  lashes  on  his  bare  back,  and 
be  fined  not  exceeding  one  thousand  dollars. 
Subornation  of  50.  If  any  person  shall,  by  any  means,  procure  another  per- 
pcrmry.-R.S.  gp^  ^^  commit  such  wilful  and  corrupt  perjury  as  is  mentioned 
"'  '^'°  '  in  the  preceding  section,  the  person  so  offending  shall  be  pun- 
ished in  like  manner  as  the  person  committing  the  perjury. 
Perjury  and  51.  Proinded,  liowevcr,  That,  if  such  perjury  or  subornation 

c"''haTcI°e3  -  of  PP'"JI''>T  be  committed  or  procured  on  the  trial  of  any  offence 
K!''s.''c.''34rs-  the  punishment  whereof  is  death,  in  that  ease,  the  offender 
^^-  shall,  instead  of  the  public  whipping,  have  his  right  ear  cut  off 

and  severed  entirely  from  the  head,  and  nailed  to  the  pillory 
by  the  sheriff,  there  to  remain  till  sundown. 
Perjured  per-        52.   All  persons  convicted  of  perjury  or  subornation  of  per- 
sons made  in-  jurv,  shall  be  rendered  thereby  incapable  of  giving  testimony 

famous. — R.  b.  J      J '  ,        i     x 

c.  34,  s.  50,  51.  before  any  court  whatsoever. 

Accessories  to  53.  And  for  the  more  effectual  prosecution  of  accessories 
felonies  before  before  the  fact  to  felony,  it  is  enacted,  that  if  any  person  shall 
the  fact.  counsel,  procure,  or  command  any  other  person  to  commit  any 

felony,  whether  the  same  be  a  felony  at  common  law,  or  by 
virtue  of  any  statute  or  statutes  made,  or  to  be  made,  the  per- 
son so  counselling,  procuring,  or  commanding,  shall  be  deemed 
When,  where,  guilty  of  felony,  and  may  be  indicted  and  convicted,  either  as 
and  how  tried.  ^^  accessory  before  the  fact  to  the  principal  felony,  together 
rDS.-iMlt'c.  with  the  principal  felon,  or  after  the  conviction  of  the  prin- 
58.  '      cipal  felon  ;  or  may  be  indicted  and  convicted  of  a  substantive 

felony,  whether  the  principal  felon  shall  or  shall  not  have  been 
previously  convicted,  or  shall  or  shall  not  be  amenable  to  jus- 
tice, and  may  be  punished  in  the  same  manner  as  any  acces- 
sory before  the  fact  to  the  same  felony,  if  convicted  as  an  ac- 
cessory, may  be  punished ;  and  the  offence  of  the  person  so 
counselling,  procuring,  or  commanding,  howsoever  indicted, 
may  be  inquired  of,  tried,  determined,  and  punished  by  any 
court  which  shall  have  jurisdiction  to  try  the  principal  felon, 
in  the  same  manner  as  if  such  offence  had  been  committed  at 
the  same  place  as  the  principal  felony  or  where  the  principal 
felony  is  triable,  although  such  offence  may  have  been  com- 
mitted at  any  place  within  or  without  the  limits  of  the  State; 
and  that,  in  case  the  principal  felony  shall  have  been  commit- 
ted within  the  body  of  any  county,  and  the  offence  of  coun- 
selling, procuring,  or  commanding  shall  have  been  committed 
within  the  body  of  any  other  county,  the  last-mentioned  offence 
may  be  inquired  of,  tried,  determined,  and  punished  in  either 
of  such  counties.  Provided  ahvays,  that  no  person  who  shall 
be  once  duly  tried  for  any  such  offence,  whether  as  an  acces- 
sory before  the  fact,  or  as  for  a  substantive  felony,  shall  be 
liable  to  be  again  indicted  or  tried  for  the  same  offence. 
Accessories  to  54.  And  for  the  more  effectual  prosecution  of  accessories 
{he'i-act."""'  after  the  fact  to  felony,  it  is  enacted,  that  if  any  person  shall 
become  an  accessory  after  the  fact  to  any  felony,  whether  the 
same  be  a  felony  at  common  law,  or  by  virtue  of  any  statute 
or  statutes  made,  or  to  be  made,  such  person  shall  be  deemed 


Chap.  34.]  crimes  and  punishments.  213 

guilty  of  a  misdemeanor,  and  may  be  indicted  and  convioted 
together  with  the  principal  felon,  or  after  the  conviction  of  the 
principal  felon,  or  may  be  indicted  and  convicted  for  such  mis- 
demeanor, whether  the  principal  felon  shall  or  shall  not  have 
been  previously  convicted,  or  shall  or  shall  not  be  amenable  to 
justice,  and  may  be  punished  by  fine,  imprisonment,  and  pil- 
lory, or  with  part  only  of  such  punishments,  at  the  discretion 
of  the  court ;  and  in  case  the  person  so  offending  shall  be  a 
free  negro,  the  court  may  likewise  punish  the  offence  with  a 
public  whipping.  And  the  offence  of  such  person  may  be  When,  where, 
inquired  of,  tried,  determined,  and  punished  by  any  court  ^^J^ '^^^^^''g'l''- 
which  shall  have  jurisdiction  of  the  principal  felon,  in  the  53.— i8D2,  c' 
same  manner  as  if  the  act,  by  reason  whereof  such  person  ^^■ 
shall  have  become  an  accessory,  had  been  committed  at  the 
same  place  as  the  principal  felony,  although  such  act  may 
have  been  committed  without  the  limits  of  the  State;  and, 
that  in  case  the  principal  felony  shall  have  been  committed 
within  the  body  of  any  county,  and  the  act  by  reason  whereof 
any  person  shall  have  become  accessory  shall  have  been  com- 
mitted witiiin  the  body  of  any  other  county,  the  offence  of 
such  person  guilty  of  a  misdemeanor  as  aforesaid,  may  be 
inquired  of,  tried,  determined,  and  punished  in  either  of  said 
counties.  Provided  always,  that  no  person,  who  shall  be  once 
duly  tried  for  such  misdemeanor,  shall  be  again  indicted  or 
tried  for  the  same  offence. 

55.  And  in  order  that  accessories  may  be  convicted   and  Accessories 
punished  in  cases  where  the  principal  felon  is  not  attainted ;  ■"^lYs^n'ot^f" 
it  is  enacted,  that,  if  any  principal  offender  shall  be  in  any-  tainted. 
wise  convicted,  it  shall  be  lawful  to  proceed  against  an  acces- 
sory, either  before  or  after  the  fact,  in  the  same  manner  as  if 

the  principal  felon  had  been  attainted  thereof,  notwithstanding 
such  principal  felon  shall  die  or  be  admitted  to  the  benefit  of 
clergy,  pardoned,  or  otherwise  delivered  before  attainder;  and 
every  such  accessory  shall  suffer  the  same  punishment,  if  he  Slay  be  pun- 
be  in  anywise  convicted,  as  he  should  have  suffered  if  the  prin-  '^'"^''■ 
cipal  had  been  attainted. 

56.  And  with  regard  to  receivers  of  stolen   property,  it  is  Receivers  of 
enacted,  that  if  any  person  shall  receive  any  chattel,  property,  &c!!ot?'ny'' 
money,  valuable  security,  or  other  thing  whatsoever,  the  steal-  value.— E.S.c. 
ing  or  taking  whereof  shall  amount  to  a  larceny  or  felony,  ^*'  ^'  ^*' 
either  at  common  law,  or  by  virtue   of  any  statute  made  or 
hereafter  to  be  made,  such  person  knowing  the  same  to  have 

been  feloniously  stolen  or  taken,  every  such  receiver  shall  be 
deemed  to  be  guilty  of  a  misdemeanor,  and  may  be  indicted 
and  convicted,  whether  the  felon  stealing  and  taking  such 
chattels,  property,  money,  valuable  security,  or  other  thing, 
shall  or  shall  not  have  been  previously  convicted,  or  shall  or 
shall  not  be  amenable  to  justice ;  and  any  such  receiver  may 
be  dealt  with,  indicted,  tried,  and  punished  in  any  county  in 
which  he  shall  have,  or  shall  have  had  any  such  property  in 
his  possession,  or  in   any  county  in  which  the  thief  may  be 


214  CRIMES   AND   PUNISHMENTS.  [CnAP.  34. 

tried,  in  the  same  manner  as  such  receiver  may  be  dealt  with, 
indicted,  tried,  and  punished  in  the  county  where  he  actually 
received  such  chattel,  money,  security,  or  other  thing;  and  on 
conviction,  such  receiver  shall  be  punished  as  one  convicted  of 
larceny.  , 

Altering  marks      57     If  any  pcrson  shall  knowingly  alter  or  deface  the  mark 
l'":'beSs-E  or  brand  of  any  other  person's  horse,  mule,  or  ass,  neat  cattle, 
S.°c.  34,  s.'  54.    sheep,  goat,  or  hog,  or  shall  knowingly  mismark  or  brand  any 
such  beast  that  may  be  unbranded  or  unmarked,  not  properly 
his  own,  with  intent  to  defraud  any  other  pcrson,  the  person  so 
offending  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall 
be  punished  as  if  convicted  of  petit  larceny. 
Holding  out  58.    Any  person  who  shall  make  or  display,  or  cause  to  be 

false ligiitson  ^^^q  or  displayed  any  false  light  or  beacon,  on  or  near  the 
Tc'sts.  56:  sea-coast,  for  the  purpose  of  deceiving  and  misleading  masters 
of  vessels,  and  thereby  to  put  them  in  danger  of  shipwreck, 
shall  be  deemed  guilty  of  a  misdemeanor. 
Forgery.-R.  59.  If  any  person,  of  his  own  head  and  imagination,  or  by 
S.c.34,6.21.  ^^jgg  conspiracy  or  fraud  with  others,  shall  wittingly  and 
falsely  forge  and  make,  or  shall  cause  or  wittingly  assent  to  be 
foro-ed  or  made,  or  shall  show  forth  in  evidence,  knowing  the 
same  to  be  forged,  any  deed,  lease,  or  will,  or  any  bond,  writ- 
ing obligatory,  bill  of  exchange,  promissory  note,  indorsement, 
or  assignment  thereof ;  or  any  acquittance  or  receipt  for  money 
or  goods ;  or  any  receipt  or  release  for  any  bond,  note,  bill,  or 
any  other  security  for  the  payment  of  money ;  or  any  order  for 
the  payment  of  money  or  delivery  of  goods,  with  intent,  in  any 
of  the  said  instances,  to  defraud  any  person  or  corporation,  and 
thereof  shall  be  convicted  in  any  of  the  superior  courts  of  law, 
How  punished,  such  person  so  offending  shall  be  adjudged  to  stand  in  the 
pillory  one  hour,  and  receive  thirty-nine  lashes  on  his  bare  back, 
and  be  imprisoned  not  less  than  six  months  nor  longer  than 
three  years,  and  fined  at  the  discretion  of  the  court ;  and  all  or 
any  of  such  punishment,  at  the  discretion  of  the  court,  may  be 

inflicted.  i.    f  •*. 

Counterfeiting       QQ    If  any  person  shall  falsely  make,  forge,  or  counterieit, 
Sk^pubiio,  or  cause  or  procure  the  same  to   be  done,  or  willingly  aid  or 
or  corporation '  assist  therein,  any  bill  or  note  in  imitation  of,  or  purporting  to 
ITsts^g-  be,  a  bill  or  note  of  any  incorporated  bank  in  this  State,  or  in 
any  of  the  United   States,  or  in  any  of  the  territories  ot  the 
United  States ;  or  any  order  or  check  on   any  such   bank  or 
corporation,  or  on  the  cashier  thereof;  or  any  of  the  securities 
purporting  to  be  issued  by  or  on  behalf  of  the  State,  or  by  or 
on  behalf  of  any  corporation,  with  intent  to  injure  or  defraud 
any  person,  bank,  or  corporation,  or  the  State;  the  person  so 
oflending  shall  be  deemed  guilty  of  felony,  and  on  conviction 
thereof  in  the  superior  court,  he  shall  be  punished  in  like  man- 
ner, as  if  lie  had  been  convicted  under  the  preceding  section. 
Parsing,  or  at-       Gl     And  if  any  pcrson  dirccilv  or  indirectly,  whether  for  the 
n'i;rc;^n?er-   Sake  of  gain,  or  with  intent  to  defraud  or  injure  any  other  per- 
foit  notes.-R.  son,  shall  utter  or  publish  any  sucii  false,  forged,  or  counter- 

S.  0.  34,  s.  60.  ^' 


Chap.  34.]  crimes  and  punishments.  215 

feited  bill,  note,  order,  check,  or  security,  as  is  mentioned  ia  the 
preceding  section  of  this  chapter;  or  shall  pass,  or  deliver,  or 
attempt  to  pass,  or  deliver  any  of  them  to  another  person, 
(knowing  the  same  to  be  falsely  forged  or  counterfeited,)  the 
person  so  offending  shall,  on  conviction  thereof  in  the  superior 
court,  be  punished  in  like  manner  as  is  prescribed  in  section 
fifty-nine  of  this  chapter. 

62.  If  any  ofHcer  or  agent  of  a  corporation  shall,  falsely  and  Forging,  issu- 
with  a  fraudulent  purpose,  make  with  the  intent  that  the  same  c'J.fiiSes  of 
shall  be  issued  and  delivered  to  any  other  person  by  name  or  stock. 

as  holder  or  bearer  thereof,  any  certificate  or  other  writing, 
whereby  it  is  certified  or  declared  that  such  person,  or  holder, 
or  bearer,  is  entitled  to  or  has  any  interest  in  the  stock  of  such 
corporation,  when  in  fact  such  person,  or  holder,  or  bearer,  is 
not  so  entitled,  or  is  not  entitled  to  the  amount  of  stock  in  such 
certificate  or  writing  specilied;  or  if  any  officer  or  agent  of 
such  corporation,  or  other  person,  knowing  such  certificate  or 
.  other  writing  to  be  false  and  untrue,  shall  transfer,  assign,  or 
deliver  the  same  to  another  person,  for  the  sake  of  gain,  or 
with  the  intent  to  defraud  the  corporation  or  any  member 
thereof,  or  such  person  to  whom  the  same  sliall  be  transferred, 
assigned,  or  delivered,  the  person  so  offending  shall,  on  convic- 
tion in  the  superior  court,  suffer  the  same  punishment  as  if  he 
had  been  convicted  under  section  fifty-nine  of  this  chapter. 

63.  And  if  any  person  shall  sell,  by  delivery,  indorsement.  Selling  forgea 
or  otherwise,  to  any  other  person,  any  judgment  for  the  recov- J^J^'^^I^T*'' 
ery  of  money  purporting  to  iiave  been  rendered  by  a  justice  of  °"  ^' 

the  peace,  or  any  bond,  promissory  note,  bill  of  exchange,  order, 
draft,  or  liquidated  account  purporting  to  be  signed  by  the 
debtor,  (knowing  the  same  to  be  forged,)  the  person  so  offend- 
ing shall,  on  conviction  thereof  in  the  superior  court,  be  pun- 
ished in  like  manner  as  one  who  offends  against  section  fifty- 
nine  of  this  cliapter. 

64.  If  any  person  shall  falsely  make,  forge,  or  counterfeit,  or  Counterfeiting 
cause  or  procure  to  be  falsely  made,  forged,  or  counterfeited,  s°i^?'°"  ""^'}  " 
or  willingly  aid  or  assist  in  falsely  making,  forging,  or  counter- 
feiting  the  resemblance   or  similitude  or  likeness  of  a  Span- 
ish milled  dollar,  or  any  foreign  coin  of  gold  or  silver,  which  is 

in  common  use  and  received  in  the  discharge  of  contracts  by 
the  citizens  of  the  State  ;  or  shall  pass,  utter,  publish,  or  sell,  P^issin?,  or  at- 
or  attempt  to  pass,  utter,  publish,  or  sell,  or  bring  into  the  State  p  ™rth'™!.-i;. 
from  any  other  place,  with  intent  to  pass,  utter,  publish,  or  sell  «•  <^-  s^.  "•  ^'■ 
as  true,  any  such  false,  forged,  or  counterfeited  coin,  knowing 
the  same  to  be  false,  forged,  or  counterfeited,  with  intent  to 
defraud  any  corporation,  or  any  person  whatsoever ;  every  per- 
son so  offending  shall  be  deemed  guilty  of  a  misdemeanor,  and 
on  conviction  thereof,  in  a  superior  court  of  law,  shall  be  pun- 
ished in  like  manner  as  if  he  had  been  convicted  under  section 
fifty-nine  of  this  chapter. 

65.  If  any  person  shall  have  in  his  possession  any  instru-  Halving  in  po?- 
ment  for  the  purpose  of  making  any  counterfeit  similitude  or  meu'tribr'ouuu- 


216  CRIMES    AND   PUNISHMENTS.  [ChAP.    34. 

terfeitin;  snch  lilceness  of  a  Spanish  milled  dollar,  or  other  foreign  coin  nnade 
cohi.-R.  S.  c.  q£  o.qJj  q^.  silver,  which  is  in  common  iise  and  received  m  dis- 
^*'  '■  '^^'  cha'r'^e  of  contracts  by  the  citizens  of  the   State,  and  shall  be 

duly^convicted  thereof  in  any  superior  court  of  law,  the  person 
so  offending  shall  receive  thirty-nine  lashes  on  his  bare  back, 
and  be  further  liable  to  be  fined  at  the  discretion  of  the  court 
not  more  than   five  hundred  dollars,  and  be  imprisoned  not 
more  than  twelve  months. 
Fraudulently         66.    If  any  person  shall  fraudulently  connect  together  difler- 
connecting       ^^^  pj^.^g  of  f^o  or  more  bank-notes,  or  other  genuine  instru- 
Eai?-nSc!  ments,  in  such  a  manner  as  to  produce  another  note  or  instru- 
ment, with  intent  to  pass   all   of  thenr  as  genuine,  the  same 
shall  be  deemed  a  forgery,  and  the  instrument  so  produced,  a 
forged  note,  or  forged  instrument,  in  like  manner  as  if  each  of 
them  had  been  falsely  made  or  forged. 
Che.fm.'by         67.    If    any    person    shall   knowingly   and    designedly,    by 
false  tokens.-  means  of  any   forged  or  counterfeited  paper  in  writing  or  in 
R.S.o.34,s.6i.  ^^.^^^^  ^^  ^^  ^^^^^  ^.^jgg  ^Qj.g„^  oj.  other  false  pretence  whatso- 
ever, obtain  from  any  person  or  corporation  within  the  State 
any  money,  goods,  property,  or  other  thing  of  value,  or  any 
bank-note,  check,  or  order  for  the  payment  of  money,  issued 
by  or  drawn  on    any   bank  or  other    society   or  corporation 
within  this  State,  or  on  any  of  the  United  States,  or  any  treas- 
ury warrant,  debenture,  certificate  of  stock,  or  public  security, 
or  any  order,  bill  of  exchange,  bond,  promissory  note,  or  other 
oblio-ation,  either  for  the  payment  of  money  or  lor  the  delivery 
of  specific  articles,  with  intent  to  cheat  or  defraud  any  person 
or  corporation    of   the    same,   such    person   shall    be    deemed 
<Tuilty   of  a   misdemeanor  for   fraud    and   deceit,    and    being 
thereof  convicted,  in  the  superior  court,  shall  be  punished  by 
Ho,v  punished,  fine,  and  imprisonment  not  exceeding  twelve  months,  standing 
_R.  S.  c.  34,  jj^  the  pillory,  public  whipping  not  exceeding  tbirty-mnc  lashes 
'•"•  on  his  bare  back,  all  or  any  of  them  at  the  discretion  of  the 

court    due  regard   being  had  to  the  nature  and  circumstances 
of  the  otTence.     Provided  aiwaijs,  that  if,  on  the  trial  of  any 
one  indicted  for  such  misdemeanor,  it  shall  be  proved  that  he 
obtained  the  property  in  such  manner  as  to  amount  to  larceny, 
he  shall  not,  by  reason  thereof,  be  entitled  to  be  acquitted  of 
the  misdemeanor. 
Fraudulent  en-      68.    If  the  treasurer  of  the  State  shall  willingly  or  falsely 
tries  and  state-        ,^  ^^  ^^^^^  to  be  made,  any  I'alse  entry  or  charge  in  any 
iTotL'^X!- book 'kept  by  him  as  ti-ea surer,  or  shall  wittingly  and  falsely 
^\f!:  '■  "^'     form,  or  procure  to  be  formed,  any  statement  ot  the  treasury, 
'•  to  be  by  him  laid  before  the  governor,  the  General  Assemb  y, 

or  any  committee  thereof,  or  to  be  by  him  used  in  any  settle- 
ment'which  he  is  required  to  malvc  with  the  comptrt)llcr,  with 
intent,  in  any  of  said  instances,  to  defraud  the  State  or  any 
person,  such  treasurer  shall  be  deemed  guilty  of  a  nnsde- 
meanor,  and,  upon  conviction  Ihereof  in  any  of  the  superior 
courts  of  the  State,  shall  be  fined  at  the  discretion  of  the 
court,  not  exceeding  three  thousand  dollars,  and  imprisoned 
not  exceeding  three  years. 


Chap.  34.]  crimes  and  punishments.  217 

69.  If  any  person  shall  open,  set  on  foot,  carry  on,  promote.  Lotteries  for- 
make,  or  draw,  publicly  or  privately,  a  lottery,  by  whatever''''''''^"" 
name,  style,  or  title  the  same  may  be  denominated  or  known ; 

or  if  any  person,  by  such  ways  and  means,  expose  or  set  to 

sale  any  house  or  houses,  lands,  or  real  estate,  or  any  goods  or 

chattels,  cash,  or  written  evidence  of  debt,  or  certificates  of 

claims,  or  any  thing  or  things  of  value  whatever  ;  every  person,  How  punishecl. 

so  offending,  shall  be  deemed  guilty  of  a  misdemeanor,  and  be  — K-  S.  c.  34, 

fined,  not  exceeding  two  thousand  dollars,  or  be  imprisoned,  not  ^'  ^^' 

exceeding  six  months,  or  both,  at  the  discretion  of  the  court. 

70.  If  any  person  shall  sell,  barter,  or  dispose  of  any  lottery  Sale  of  lottery 
ticket  or  order  for  any  number  or  shares  in  any  lottery,  or  shall  d'en.!!!R?''s.'^c. 
in  anywise  be  concerned  in  such  lottery,  by  acting  as  agent  H  s.  63. 

in  the  State  for  or  on  behalf  of  any  such  lottery,  to  be  drawn 
or  paid  either  out  of  or  within  the  State,  such  person  shall  be 
deemed  guilty  of  a  misdemeanor,  and  punished  as  in  the  pre- 
ceding section. 

71.  If  any  person  shall  open,  establish,  use,  or  keep  a  faro-  Favo  tables 
bank  or  a  faro  table,  with  the  intent  that  games  of  chance  is4s,' c.'sir 
may  be  played  thereat,  he  shall  be  deemed  guilty  of  a  misde- 
meanor, and  on  conviction,  shall  be  fined  at  least  two  hundred 
dollars,  and  imprisoned  not  less  than  three  months. 

72.  If  any  person  shall  establish,  use,  or  keep  any  gaming  Gaming  tables 
table,  (other  than  a  faro-bank,)  by  whatever  name  such  table  "^^Mted -"""^ 
may  be  called,  at  which  games  of  chance  shall  be  played,  he  fi'.sl'cM.s.ei. 
shall,  on  conviction  thereof,  be  fined  not  less  than  two  hun- 
dred   dollars,    and    be   imprisoned  not  less  than  one  month. 

And  every  person  who  shall  play  thereat,  or  thereat  bet  any 
money,  property,  or  thing  of  value,  whether  the  same  be  in 
stake  or  not,  shall  be  deemed  guilty  of  a  misdemeanor,  and 
any  fine  imposed  on  the  offender  shall  not  be  less  than  ten 
dollars. 

73.  If  any  person  shall  knowingly  suffer  to  be  opened,  kept,  Persons  suffer- 
er used  in  his  house  or  any  part  of  the  premises  occupied  i3lf3®fo"|,°°  '''" 
therewith,  any  of  the  gaming  tables  by  this  chapter  prohibited,  opened  or  kept 
he  shall  forfeit  and  pay  to  any  one  who  will  sue  therefor,  two  "ses^'^hmv^'iri 
hundred  dollars,  and  be  deemed  guilty  of  a  misdemeanor,  and  ishe'd.— r/s!". 
on  conviction  shall  be  fined  and  imprisoned.  ^'*'  ^-  ^'^• 

74.  All  justices  of  the  peace,  sheriffs,  constables,  and  com-  Gaming  tables 
missioners  of  police  in  the  several  towns  of  the  State,  are  *^i  '"^  <^^^t>-'>7- 
hereby  authorized  and  directed,  on  information  made  to  them  Sheriffs  and 
on  oath,  that  any  gaming  table,  prohibited  to  be  used  by  this  S'thl^mvei- 
chapter,  is  in  the  possession  or  use  of  any  person  within  the  of  the  county. 
limits  of  their  jurisdiction,  to  destroy  the  same  by  every  means  ^''^  ^•°"  ^*'  ^ 
in  their  power ;  and  they  shall  call  to  their  aid  all  the  good 

citizens  of  the  county,  if  necessary  to  effect  their  destruction. 

75.  If  any  person  shall  bet  money,  property,  or  other  thing  Betting  or 
of  value,  whether  the  same  be  in  stake  or  not,  at  any  game  oY  P.ir;is"[;i''ordi- 
cards  which  shall  be  played  in  any  ordinary,  tavern,  or  house  nary,  or  retail 
of  entertainment,  or  in. any  house  wherein  spirituous  liquors  are  ej'!rE''s''|,''"' 
retailed,  or  on  any  part  of  the  premises  occupied  with  such  34,'  s.  6d.  ' 

19 


218  CRIMES   AND   PUNISHMENTS.  [ChAP.  34. 

ordinary,  tavern,  house  of  entertainment,  or  house   wherein 
spirituous  liquors  are  sold  as  aforesaid  ;  or  shall  play  at  such 
game  of  cards ;  the  person  so  offending  shall  be  deemed  gudty 
of  a  misdemeanor,  and  any  fine  imposed  on  the  otlence  shall 
not  be  less  than  ten  dollars. 
Keeper  of  onii-      76.    If  any  keeper  of  an  ordinary,  or  house  of  entertamment, 
nm-y  and  retail  ^^  ^^  ^  j^^^gg  wherein  liquors  are  retailed,  shall  knowmgly  suf- 
av^ds'tobe"""  fer  any  game   of  cards,  at  which  money  or   property  or  any 
played  on         ^j^-^^^  of  value  is  bct,  whether  the  same  be  in  stake  or  not,  to 
Ksd'r.-E.''  be  ptayed  in  any  such  house,  or  on  any  part  of  the  premises 
S.  G.  34, 8.  70.   ogj.y  ied  therewith  ;  or  shall  furnish  persons  so  playing  or  bet- 
tino-  with  drink  or  other  thing  for  their  comfort  or  subsistence 
during  the  time  of  play,  he  shall  be  deemed  guilty  of  a  misde- 
meanor, and  on  conviction  shall  be  fined  not  less  than  ten  dol- 
lars, and  be  imprisoned  not  more  than  thirty  days. 
Money  orprop-      77.  All  moneys,  or  other  property  or  thing  of  value  exhibited 
erty  staked       for  the  purpose  of  alluring  persons  to  bet  at  any  prohibited 
"^ittst^Le,  ir  actually  staked  V  betted  on  such  game,  shall  be 
^-  «^-  liable  to  be  seized  by  any  justice  of  the  peace,  or  by  any  person 

acting  under  his  warrant.     And  the  moneys  or  other  property 
or  thing,  which  shall  be  so   seized,  shall  belong  one  half  to 
the  person  seizing  them,  and  the  other  half  to  the  wardens  of 
the  poor. 
Persons  oppos-      78.    If  any  person  shall  oppose  the  destruction  ot  any  pro- 
urrpeoauy"    Mbitcd  gaming  table,  or  the  seizure  of  any  moneys,  property, 
on-rs.  I     or  other  thing  staked  on  forbidden  games,  or  shall  talve  and 
^*'  '•  '^°-  carry  away  the  same  or  any  part  thereof  after  seizure,  he  shall 

forfeit  and  pay  to  the  person  so  opposed  one  thousand  dol  ars, 
for  the  use  of  the  State  and  the  person  so  opposed;  and  shall, 
moreover,  be  deemed  guilty  of  a  misdemeanor. 
Billiard  and  79     Billiard  and  backgammon  tables  are  excepted  from  the 

tabtfexc;;;;i   provisions  of  this  chapter,  and  may  be  used. 
ed.-B.  S.  c.  80     If  any  clerk  of  the  court  of  pleas  and  quarter-sessions 

M*u^ia*;of  shall  knowingly  issue  any  license  for  marriage  between  any 
free  negroes,  fj-gg  uersou  of  color  and  a  white  person  ;  or  it  any  clergyman, 
^^i'forbUuS  minister  of  the  gospel,  or  justice  of  the  peace  shall  knowmgly 
-K.  S.  c.  34,  marry  any  such  free  person  of  color  to  a  white  person,  the  per- 
'■  "■  son  so  offending  shall  be  guilty  of  a  misdemeanor. 

Enticing  away      81.    Any  person  who  shall  entice,  persuade,  or  tempt  any 
and  harboring   ^^^^^  ^^  absent  himself  from  his  owner's  service,  or  who  shall 
'^^vZ%n.  s.  harbor  or  maintain,  under  any  pretence  whatever,  any  runaway 
c.  34,  s.  73.       ^jg^^,p^  gj^^n  fQj.fpi^.  ^„d  pay  to  the  owner  of  such  slave  one  hun- 
dred dollars,  and  be  further  liable  to  the  owner  in  an  action 
for  damages;  and  such  person  shall  also  pay  a  penalty  of  one 
hundred  dollars  to  any  person  suing  for  the  same,  one  half  for 
his  use,  and  the  other  for  the  use  of  the  wardens  of  the  poor  ol 
the  county  where   suit   is    brought.     And   the   olleiider  shall 
moreover  be  deemed  guilty  of  a  misdemeanor,  and  hned  at 
the  discretion  of  the  court,  not  exceeding  one  hundred  doUars, 


Teaching 
slaves  to  read 


and  imprisoned  not  exceeding  six  months. 

82.  Any  free  person  who  shall  teach,  or  attempt  to  teach 


Chap.  34.]  crimes  and  punishments.  219 

any  slave  to  read  or  write,  the  use  of  figures  excepted,  or  shall  or  mite,  use 
give   or  sell  to   such   slave   any  book  or  pamphlet,  shall   be  °cne"r!!i7s 
deemed  guilty  of  a  misdemeanor,  and  upon  conviction  thereof,  "sits.  74.' 
if  a  white  man  or  woman,  shall  be  fined  not  less  than  one  hun- 
dred, nor  more  than  two  hundred  dollars  or  imprisoned ;  and 
if  a  free  person  of  color,  shall  be  fined,  imprisoned,  or  whipped 
not  exceeding  thirty-nine,  nor  less  than  twenty  lashes. 

83.  No  person  shall  sell,  deliver,  or  give  to  any  slave,  for  his  Fire-arms,  and 
own  use,  or  for  the  use  of  any  other  person,  any  sword,  dirk,  nouVbeS' 
bowie-knife,  gun,  musket,  or  fire-arms  of  any  description  what-  f-  given  to 
soever,  or  any  other  deadly  weapons  of  offence,  or  any  lead,  ^''^™^' 
leaden  balls,  shot,  powder,  gun  cotton,  gun  flints,  gun  caps,  or 

other  material  used  for  shooting.  Provided,  however,  that  any 
person  may  sell  and  deliver  to  a  slave  for  the  use  of  the  person 
then  having  his  management,  any  of  the  articles  above  men- 
tioned, he  being  thereunto  authorized  by  a  written  permission 
from  such  manager,  specifying  the  articles  and  the  amount 
and  quantity  so  allowed  to  be  purchased  for  him  by  such 
slave.  And  provided  further,  that  nothing  in  this  section  con-  Pro^o.— R.s. 
tained  shall  be  construed  to  prohibit  the  delivery  to  slaves,  by  °;  ^3' ''^•~^**^' 
their  managers,  of  any  of  the  aforesaid  articles  to  be  carried 
from  one  place  to  another,  ^or  to  be  carried  in  the  presence  of 
such  manager. 

84.  No  person  shall  trade  with  a  slave  on  Sundays,  or  in  Trading  with 
the  night  between  the  hours  of  sunset  and  sunrise,  either  in  jay^'oTat™' 
the  buying  of,  or  selling  to  the  slave  any  article  of  property  nigiit'.— E.  s.  c. 
whatsoever.  ^^'  ^-  '^• 

85.  Nor  shall  any  person,  at  any  other  time,  buy  of  or  re-  Buying  or  re- 
ceive from   any  slave,  without  a  written  permission  for  that  sTi^s  w'iS^ut 
purpose  from  the  person  then  having  the  management  of  such  written permis- 
slave,  specifying   the    articles   to    be   sold,   and  the    probable  lE.'s.'c.'lit"' 
amount  or  quantity  thereof,  any  of  the   following  articles  of  s-  75. 
property,  to  wit :  tallow,  lard,  mutton  suet,  oil,  grease,  soap, 

cotton,  cotton-seed,  corn,  wheat,  rice,  barley,  oats,  or  grain  of 
any  kind,  pork,  bacon,  beef,  flesh  of  goats,  leather,  raw-hides, 
iron,  iron  castings,  steel,  farming  utensils,  nails,  meal,  flour, 
wine,  spirituous  liquor,  peas,  salt-fish,  flax-seed,  hogs,  cattle, 
sheep,  sheep-skins,  flesh  of  sheep,  wool,  lumber,  staves,  tar, 
pitch,  turpentine,  fodder,  hay,  shingles,  hoops,  oak-heading, 
potatoes,  silk,  linen,  cotton  or  woollen  cloth,  or  cloth  of  any 
kind,  yarn,  wearing  apparel,  gold  bullion,  silver  bullion, 
tobacco,  guano,  lime,  mechanic's  tools  of  every  kind,  crockery, 
stone,  or  wood  ware. 

86.  Nor  shall  any  person  sell  to  a  slave  any  article  which  uniaivfui  sales 
slaves  may  lawfully  buy,  unless  by  written  permission  of  the  g"  ^'''sfTr^s' 
person  then  having  the  management  of  sijch  slave  ;  or  unless    ' '''     ' "'  '^' 
the  article  be  sold  to  such   slave  in  exchange  and  payment  for 

articles,  which  may  then  have  been  lawfully  bought  of  said 
slave. 

87.  No  person  shall  sell  or  deliver  to  any  slave,  for  cash,  or  Certain  sales 
in  exchange  for  articles  delivered,  or  upon   any  consideration  '"  ^''"■'-'*  °' 


220  CRDIES   AND   PUNISHMENTS.  [Ch.VP.  34. 

spirituous  lio  whatever,  or  as  a  gift,  any  spirituous  liquor,  or  liquor  of  which 
forbidaen.-^.  gpintuous  liquor  may  be  a  chief  ingi-edieiit,  without  permission 
S.  c.  34,  s.  7o.  .^^  ^^,j.-^-,  fj.o,-j^  ti^e  person  having  the  management  of  such 
slave,  specifying  the  quantity  of  liquor  allowed  to  be  bought. 
Presumptive  88.  If  any  slave  shall  be  found  in  any  shop,  storehouse, 
evidence  of  un-  v,,arehou^e,  tippling-shop,  or  other  place  fitted  up  for  trading, 
I'^l^'^ia,^!'-"  in  the  night  after  dark  and  before  daybreak,  or  on  Sunday; 
E.  S.  c.  34,  s.    Qj  j£  gjave  shall  be  found,  at  any  other  time,  in  any  of  the 

^^'  aforementioned  places,  and  therein  shall  have  been  permitted 

to  remain  for  the  space  of  ten  minutes  with  the  door  of  the 
said  place  closed;  or  if  any  slave  shall  convey  into  the  afore- 
mentioned places  any  article  of  traffic,  and  not  bring  the  same 
out  •  or  if  any  slave  shall  bring  out  of  any  of  the  said  places 
any  article  of  traffic  not  carried  in  by  him,  the  person  using 
such  shop,  storehouse,  warehouse,  tippling-shop,  or  other  place 
fitted  up  for  trading,  shall,  in  each  case,  be  deemed  to  have 
unlawfully  traded  with  such  slave,  and  be  deemed  guilty  of  a 
misdemeanor,  and  may  be  convicted  thereof,  unless  he  be  ac- 
quitted of  the  same  by  proof  to  the  contrary ;  and  m  the  prose- 
cution for  such  offence,  or  for  the  penalty  imposed  by  the  fol- 
lowing section,  it  shall  not  be  necessary  to  name  the  article 
of  trade,  or  whether  the  offence  was  in  buying  or  selling. 
Offence  and  89.    Any  person  offending  against  any  of  the  provisions^of 

punishment  for  gection  eightv-three,  eighty-four,  eighty-five,  eighty-six,  ciglity- 
rngvdSsiavet  seven,  and  eighty-eight  of  this  chapter,  shall  be  deemed  to  be 
K.  S.  e.  34,  s.  guilty  of  a  misdemeanor,  and  on  conviction  thereot,  shall  be 
"■  punished  accordingly.     Provided,  however,  that,  if  the  defend- 

ant shall  have  been,  at  the  time  of  committing  the  oftcnce,  a 
retailer  of  spirituous  liquors  by  the  small  measure,  he  shall  on 
conviction,  moreover,  forfeit  his  license  to  retail,  or  any  license 
which  he  may  have  taken  since  the  commission  of  the  offence, 
and  shall  be  incapable  of  taking  license  again  for  that  purpose, 
for  the  space  of  two  years  from  the  date  of  his  conviction. 
And  provided  cdso,  that  the  defendant  shall  not  be  imprisoned 
for  a  lon'^er  period  than  three  months,  nor  fined  more  than  one 
hundred  "dollars.  Provided  further,  that,  if  the  offender  be  a 
free  person  of  color,  the  court  may,  in  the  place  of  imprison- 
ment, sentence  him  to  be  whipped  not  exceeding  thirty-nine 

Presumptive         90.   Every  species  of  unlawful  trading  with  a  slave,  which 
assent  of  prin-  j^  f^.^yjen  by  this  chapter,  shall,  when  done  by  the  agent  or 
fXradingby"  manager  of  another,  in  the  course  of  the  business  in  which  he 
his  agent.         j^  employed,  be  deemed  to  have  been  done  by  the  consent  and 
command  of  his  principal  or  employer,  unless  the  contrary  be 
proved ;  and  such  agent  or  manager  shall  be  compelled  to  tes- 
tify as  a  witness  concerning  the  said  offence,  but  his  evidence 
shall  in  no  case  be  used  against  himself  in  any  suit  or  prose- 


cution  under  this  chapter. 
r,„f;«u.,..„=»i      91.    If  any   person  shall  fraudulently  give,  or  cause  to  be 
to  slaves  to       given,  to   any  slave,  a  permission  in  writing  to  sell,  trade,  or 
34  b!  M         ■  traffic  in  any  article  of  personal  property,  without  the  authority 


Forgedliccnses 


CHAr.  34.]  CRIMES    AND    PUNISHMENTS.  221 

of  the  owner  or  manager  of  such  slave,  the  person  so  offending 
shall  be  deemed  guilty  of  a  misdemeanor. 

92.  If  any  person  shall  offend  against  any  of  the  provisions  Penl'tyofsioo 
of  any  of   the   sections   eighty-three,   eighty-four,   eiehtv-five,  f"^""'''"■^',"y 

-    I  i.        ■  -    I  ,  -1  •     1  ^  1   ^  .  ^       fl     ,        trauinp:  with 

eighty-six,   eighty-seven,  eighty-eight,  and  nmety-one  of  this  slaves.— n.  s. 
chapter,  he  shall  forfeit  and  pay  to  any  one  who  shall  sue  for  '^-  ^^'  ^-  ''"• 
the  same  the  sum  of  one  hundred  dollars. 

93.  It  shall  not  be  lawful  for  the   master  or  commander  of  Entertaining 
any  vessel  to   entertain,  or  permit  to  be  entertained,  any  slave  ne^o'-"'"^  ''^° 
or  free  negro,  on  board  such  vessel,  at  any  time  between  sun-  vessc-is\t"cei-- 
set  and  sunrise,  nor  on   Sunday,  unless  such   slave  or  free  ne-  bjtidcn'— b*"T 
gro  shall  belong  to  the  vessel,  or  such  slave  shall  have  a  pass  C.V4,  s.  76." 
from  his  master,  and  the  free  negro  a  pass  from  some  justice  of 

the  peace,  expressing  the  time  when,  and  the  business  i'or  which 
they  go  on  board;  and  if  any  slave  or  free  negro  who  has  not 
such  pass,  or  is  not  employed   on    board  the  vessel  as  one  of 
the  hands,  shall  be  found  on  board  of  any  vessel  in  any  bay, 
harbor,  creek,  or  river  within  the   State  on  Sunday,  or  in  the 
night  between  sunset  and  sunrise,  he   shall  be  deemed  guilty 
of  a  misdemeanor,  and  shall  receive  a  whipping  not  exceeding  Pnnishment  of 
forty  lashes;  and  th^   master  or  commander  of  such  vessel  so  oi'^hit'^''^^; 
entertaining,  or  permitting  entertainment  as  aforesaid,  shall  be  sonl  "'^'^^ 
deemed   guilty  of  a  misdemeanor ;  and  it  shall  be  the  duty  of 
every  justice  of  the  peace  of  the  county  where  the  offence  is 
committed,  to  whom  knowledge  thereof  shall  come,  to  issue 
hi.s  warrant  to   arrest  such   captain  or  commander,  and  recog- 
nize him  in  sufficient  bail  for  hi.s  appearance  at  the  next  term 
of  the  county  or  superior  court,  to  answer  the  charge  aforesaid. 

94.  If  any  person  shall  retail  spirituous  liquors  "j^y  the  small  Eotaiiing  spir- 
measure,  in  any   other  manner  than  is  permitted  by  law,  he  ^[,'3™* ''ji."f''^' 
shall  be   deemed   guilty  of  a  misdemeanor,  and   be  fined   not  fol-Sen?— r!' 
less  than  ten  dollars.  s.  c.  34,  s.  81. 

95.  If  any  person  shall  hunt  in  the  woods  in  the  nighttime,  Huntinsby 
by  fire-light,  or,  being  the  master  or  owner  of  a  slave,   shall  firo-iishl— R. 
permit  his  slave  to  hunt  as  aforesaid,  or  connive  thereat,  the  si.''''*''' '' ^^' 
person  so  offending  shall  be  deemed  guilty  of  a  misdemeanor, 

and  on   conviction,  shall  pay  a  fine  of  forty  dollars,  or  be  im- 
prisoned, or  both. 

_  96.    When  more  persons  Ihan  one  are  engaged  in  commit-  Accomplice  in 
ting  the  offence  of  fire-hunting,  any  one  may  be  compelled  to  IJ[vi",'!!"v|'afnce 
give  evidence  against  all  others  concerned  :  and  the  witness,  n,2n'i'i'i^t'^'ii'is''fel- 
upon  giving  such  information,  shall  be  acquitted  and  held  dis-  |,'i,"',v'er-R 
charged  from  all  penalties  and  pains  to  which  he  was  subject  S.c.°34,'s.  85.' 
by  his  participation  in  the  offence. 

97.  If  any  person   shall  wilfully   put  into  the  well,  sprin",  ^'iifni  injmy 
or  cistern  of  water  of  any  other  person,  any  substance  or  tiling,  J,"  wutln".-"'' 
whereby  such  well,  spring,  or  cistern   may  be  endaraa"-ed,  or  i63o,'c.  io<. 
the  water  thereof  be  made  less  wholesome  or  fit  for  use,  he 

shall  be  deemed  guilty  of  a  misdemeanor. 

98.  If  any  person  shall  knowingly  and  fraudulently  vote  at  >■"»■"?  fi--''.iviu- 
an  election,  who,  by  law,  shall  not"  be  entitled  to  vote 


19'  0.43. 


■1S14, 


222  CRIMES   AND    PUNISHMENTS.  [ChAP.    34. 

he  shall  be  deemed  £;uilty  of  a  misdemeanor,  and  shaU  be 
fined  or  imprisoned,  or  both  fined  and  imprisoned,  at  the  dis- 
cretion of  the  court.  Provided,  hoicccer,  that  the  fine  shall 
not  be  more  than  one  hundred  dollars,  and  the  imprisonment 
not  more  than  thirty  days.  ,.  .       ,  ^ 

Maliciously  Ob-      99.    If  any   person  shall  wilfully  and  maliciously   put  or 
;tracting  rail-   pi^^e  any   matter  or  thing  upon,  over,  or   near  any  railroad 
'^^.t  death     track;  or  shall  wilfully  and  maliciously  destroy,  injure,  or  re- 
doth  not  ensue,  ^^^e  the  roud-bed,  or  any  part  thereof,  or  any  rail,  sill,  or  other 
part  of  the  fixture  appurtenant  to,  or  constituting  or  supporting 
any  portion  of  the  track  of  such  railroad  ;  or  shall  wiUully  and 
maliciously  do  any  other  thing  with  intent  to  obstruct,  stop, 
hinder,  delay,  or  displace  the  cars  travelling  on  such  road,  or 
to  stop,  hinder,  or  delay  the  passengers  or  others  passing  over 
the  same  ;  or  shall  wilfully  and  maliciously  injure  the  road-bed 
or  the  fixtures  aforesaid,  or  any  part  thereof,  with  any  other 
intent  whatsoever,  such  person  so  offending,  sha  1  be  deemed 
<^uilty  of  a   misdemeanor,  and   on   conviction   thereot  in  the 
superior  court,  shall  be  fined  not  exceeding  one  thousand  dol- 
lar^, nor  less  than  two  hundred  dollars,  and  be  imprisoned  not 
more  than  three  years,  nor  less  than  six  ninths  ;  and  shall  be 
committed  to  jail  till  he  find  surety  for  his  good  behavior,  for 
a  space  of  time  not  less  than  three,  nor  more  than  seven  years. 
And  if  it  shall  happen  that,  by  reason  of  the  commission  o 
the  offences  aforesaid,  or  any  of  them,  any  engine  or  car  shall 
be  displaced  from  the  track,  or  shall  be  stopped,  hindered,  or 
delayed,   so  that  any  one  thereby  be  instantly   killed,  or  so 
When  death      wounded  or  hurt  as  to  die  therefrom  in  six  calendar  months 
Ilues  -1838,  thereafter,  or  shall  thereby  be  maimed  or  be  disabled  in    lie 
"'■^^-  use  of  any  limb  or  member,  then,  and  in  every  such  case,  tlie 

party  so  offending,  his  counsellors,  aiders,  and  abetters,  on 
conviction  shall  suffer  death.  ,    . 

Malicious  iniu-  100.  If  any  person  shall  maliciously  destroy  or  injure  any 
vies  to  plank-  piank-road,  turnpike,  or  canal,  or  any  appurtenance  or  lix- 
^-Jii-t^jr-ca-  ture  belonging  thereto,  or  used  therewith  ;  or  shall  maliciously 
nais,  misdc-  jestroy  or  injure  any  lock,  dam,  or  sluice,  the  same  being  a 
"""""'■  part  of  any  work  erected  or  made  for  the  purposes  of  naviga- 

tion, or  improving  the  navigation  of  any  ^yater,  the  person  so 
offending,  shall  be  deemed  guilty  of  a  misdemeanor  and  on 
conviction  thereof  in  the  superior  court,  shall   sutler  the   like 
How  punished,  punishment  as  is  provided  in  the  preceding  section  for  mali- 
ciously injuring  a  railroad.  -.u^,,* 
Wilful  i..iuries      lOi:    If  any  person  unlawfully  and  on  purpose,  but  without 
toSrisand  n,alice,  shall  commit  any  of  the  offences  mentioned  in  thetwo 
.^e,n,''rr"  preceding  sections,   he   shall   be   deemed   guilty   of   a   misde- 
■^^i.           meanor.     And  if  it  shall  happen   that  by  reason  of  the  com- 
■  ,    ,  mission  of   any   such  ollence,   any  person   shall   be   mstantly 
^""^■^"■"^"■Sllerorsowcfunded  or  hurt  as  to  die  therefrom  in  six  calen- 
dar months  tiiereafter,  or  shall  thereby  be  maimed  or  disabled 
in  the  use  of  any  limb  or  member,  then,  and   in   every  such 
case,  the  party  so  offending,  his  counsellors,  aiders,  and  abet- 


CnAP.    34.]  CRIMES   AND    PUNISHMENTS.  223 

tors,  shall  be  imprisoned  not  less  than  twelve  months,  and 
lined  at  the  discretion  of  the  court. 

102.  If  any  person   shall,   unlawfully  and  on  purpose,  re-  Removing  or 
move  from  its  place,  any  monument  of  marble,  stone,  brass,  ^umel'li^.a'""''' 
wood,  or  other  material,  erected  for  the  purpose  of  designating  mo'num''cnts 
the  spot  where  any  dead  body  is  interred;  or  for  the  purpose  ^Ij^o'^V'^'^- 
of  preserving  and  perpetuating  the  memory,  name,  fame,  birth, 

age,  or  death  of  any  person,  whether  situated  in  or  out  of  the 
common  burying-ground  ;  or  shall  unlawfully,  or  on  purpose, 
break  or  deface  such  monument,  or  alter  the  letters,  marks,  or 
inscription  thereof,  he  shall  be  deemed  guilty  of  a  misde- 
meanor. 

103.  If  any  person  shall,  by  any  other  means  than  burning  or  Destroying, de- 
attempting  to  burn,  unlawfully  and  wilfully  demolish,  destroy,  r="'in&orinjur- 
deface,  injure,  or  damage  any  of  the  houses  or  buildings  men-  houS?''"' 
tioned  in  sections  two,  seven,  and  thirty  of  this  chapter;  or  shall 
unlawfully  and  wilfully  burn,  demolish,  pull  down,  destroy,  de- 
face, damage,  or  injure  any  church,  uninhabited  house,  outhouse,  Bumins,  injm- 
or  other  house  or  building  not  mentioned  in  the  above-recited  ei,u,.°|,'''''^"'^'"^ 
sections  of  this  chapter;  or  shall  unlawfully  and  wilfully  burn,  LlbUed  a'"d"'' 
destroy,  pull  down,  injure,  or  remove  any  fence,  wall,  or  other  ^y'l^t""' un- 
inclosure,  or  any  part  thereof  surrounding  or  about  any  yard,  UvJIu'^n  Sm-b- 
garden,  cultivated  field,  or  pasture,  or  about  any  church,  grave-  ™7^^'f  J™'=J='- 
yard,   factory,  or  other   house   in   which   machinery   is   used, 

every  person  so  offending,  shall  be  deemed  guilty  of  a  mis- 
demeanor. 

104.  If  any  person  shall  unlawfully  and  on   purpose,  kill,  Wilfully  kiii- 
maim,  or  injure  any  live-stock  running  at  large  in  the  range,  uviTtocfrau- 
or  in  the  field  or  pasture  of  the  owner,  whether  done  with  the-n'"s«ti'ii'ge— 
actual  intent  to  injure  the  owner,  or  to  drive  the  stock  from  "2!' *'■'**' ^' 
the  range,  or  any  other  unlawful  intent,  every  sucli  person,  his 
coinisellors,  aiders,  and  abettors  shall  be  deemed  guilty  of  a 
misdemeanor.     Provided,  however,  that  nothing  herein  con- 
tained shall  prohibit  any  person  from  driving  out  of  the  range 

any  stock,  unlawfully  brought  from  other  States  or  places. 

J  05i,   If  any  person  shall,  within  the   counties   of   Macon,  Maliciously  or 
Jackson,   Haywood,   Madison,  and  Cherokee,  maliciously,  or  ™/t™lfi„^|,'l;. 
wilfully  and  wantonly  kill  any  horse,  mule,  cow,  bullock,  or  t^i"'  counties, 
any_ other  cattle,  the  property  of  another  person,  either  through  l^rluy-Tsai 
malice  agauist  the  owner,  or  through  wilful  and  wanton  cru-  c.  2S. 
elty  towards  such  live-stock,  and  shall  be  thereof  legally  con- 
victed in  any  of  the  superior  courts  of  law  in  the  counties 
aforesaid,  he  shall  be  subject  to  the  same  punishment,  and  liar 
ble  to  the  same  penalties,  that  are  now  imposed  by  law  on 
persons   convicted   of  feloniously  stealing,  taking,  and  carry- 
ing away  like  property.     Provided,  hoicci-er,  that  nothing  in 
this  section  contained  shall  be  so  construed  as  to  extend  the 
provisions    thereof  to    injuries    inflicted    on    live-stock,  while 
committing  depredations   on   the   crops   or  inclosures   of  the 
offender. 

106.  Those  who  get  ton  timber  on  the  Roanoke  river,  and  '''""  *'"^'"''' 

'  floated  down 


224  CRIMES   AND    PUNISHMENTS.  [ChAP.    3  i. 

Eoa,ioke  river,  float  the  same  down  said  river,  shall  select  some  brand  or  mark 
to  be  mmked,  ^^j^jj-jj  g^all  be  cut,  impressed,  or  made  on  each  log  of  tanber 
''^*''  floated  down  said  river,  a  particular  description  of  which  brand 

Marks  &c.,re-  or  mark  shall  be  recorded  in  the  clerk's  oflice  of  the  counties  ot 
ioraed,  where.  Halifax,  Northampton,  Bertie,  Martin,  and  Washmgton,  and 
-1854,  c.  45,    ^  ^gj.t;fipjjt^  thereof  under  the  seal  of  the  court,  setting  forth 
the  date  when  recorded,  shall  be  taken  by  each  person  record- 
ing his  brand  or  mark,  which  shall  differ  from  any  other  mark 
or^brand  ))reviously  recorded. 
AitcrinRmark       107.   Any  person  may  tal^e  to  his  own  use  any  log  ot  ton 
ortiikingmark-  timber  floatin"  singly  down  said  river,  which  is  neitlier  markea 
h''„Tto"tlil'  or  branded;  alid  if  any  person  shall  wilfully  and  fraudulently, 
larecny.-i854,  ^^.^^j^  intent  to  steal  the  same,  alter,  deface,  or  remove  any  such 
''■*^'''^"         mark  or  brand,  or  shall  feloniously  take  or  secrete  any  log  of 
ton  timber,  thus  marked  or  branded,  he  shall  be  deemed  to  be 
o-uilty  of  larceny,  and  may  be  indicted  therefor  m  the  county 
m  superior  court  of  the  county  where  the  offence  may  be  com- 
mitted, or  where  the  timber  may  be  carried,  and,  upon  convic- 
tion, shall  suffer  as  in  other  cases  of  larceny. 
Mark  first  re-        108.  In  all  cascs  of  Controversy  as  to  the  ownership  of  tmi- 
corded  to  hold.  i^gj.  claimed  by  two  or  more  persons  having  the  same  brand 
-1854,0.45,    ^^  .^^^j_^  1^^  ^j^^j^  ^^  considered  the   owner  whose   brand  or 

mark  was  first  recorded  in  all  the  said  counties. 
Sales  of  liquor,      109.  If  any  person  shall  exhibit  any  stud-horse,  or  jackass, 
traffic,  and  ex-  ^^  curiosities  within  half  a  mile  of  a  place  where  the  peo- 

piacrofX  pie  are  assembled  for  divine  worship;  or  shall  sell  any  spiritu- 
ship, forbidden,  Unuor,  or  any  liquid  of  which  spirituous  liquor  shall  be  a 
r."w2,7."i!2';  chief  ingredient?  or  be  engaged  in  any  kind  of  tmflic  or  at- 
1850,  c.  106,  s.  ^  ^  ^Q  traffic,  within  one  mile  where  divmc  worship  is  cele- 
^'  ^'  brating,  contrary  to  any  of  the  provisions  of  sections  six  and 

seven  of  chapter  ninety-seven,  entitled  "  Religious  Societies; 
every  person,  so  offending  against  any   of  the  provisions  of 
said  sections,  shall  be  deemed  guilty  of  a  misdemeanor. 
Sending  letters      110.  If  any  person  shall  knowingly  send  or  deUver  any  let- 
containing        ^.pj  Qj  writing  demanding  of  any  person,  with   menaces,  aiiU 
■    ZnS- tV  without  any  reasonable  or  probable  cause  any  chattel  money, 
ey;  or  threat-   ^^  valuable  security;  or  if  any  person  shall  accuse,  or  tUreaten 
rSfTnfa-""  to  accuse,  or  shall  knowingly  send  or  deliver  any  letter  or  wnt- 
mous  crime  to  -^      accusing  or  threatening  to  accuse  any  person  oi  any  crime 
extort  .noney.       ^^j^,,^^,^.  ^j^^  j,^^^.  ,,.5^,,  ^i^ath,  branding,  whipping,  or  pillory, 
with  a  view  or  intent  to  extort  or  gain  from  such  person  any 
chattel,  money,  or  valuable  security,  every  such  oflender  shall 
be  deemed  guihy  of  a  misdemeanor. 
Malicious  iniu-      111.   If  any  pcrsou   shall   maliciously  commit  any  damage, 
rics  to  real  es-  l^^\^^yy  or  spoil  upon  any  real  property  whatsoever,  either  ot  a 
'""•  public  or  in-ivate  nature,  for  which  no  punishment  is  provided 

by  any  existing  law,  every  person  so  olU'nding  shall  be  deemed 
'niiltyof  a  misdemeanor.  Frocidvd,  uhcaj/s,  that  nothing  liere- 
fn  contained  shall  extend  to  any  case  where  the  jvarty  tres- 
passing or  (loiny  the  injury,  acleil  under  a  fair  and  reasonable 
belief  that  he  had  a  right  to  do  the  act  complained  of,  nor  to 


Chap.  34.]  crimes  and  punishments.  225 

any  trespass,  not  being  wilful  and  malicious,  committed  in 
hunting,  fishing,  or  the  pursuit  of  game. 

112.  If  any  white  female  shall  be  convicted  of  any  offence,  White  women 
the  punishment  or  any  part  whereof  shall  be  branding  or  whip-  "d'or '"hi'™"d' 
])uig,  the  same  shall  not  be  inflicted,  but  the  court,  instead 

thereof,  may  sentence  such  female  to  imprisonment  for  any 
length  of  time  in  its  discretion. 

113.  If  any  sheriff,  coroner,  or  other  returning  officer  shall  Neglisentomis- 
negligently  omit  to  do  and  perform  any  act,  matter,  or  thing  ','™officer3''in' 
requu-ed  of  him  in  relation  to  the  returns  to  be  made  by  him,  cie'ction  of  gov. 
in  regard  to  the  election  of  governor,  or  of  electors  for  presi- ■Js^j^c'^'^M^^c" 
dent  and  vice-president  of  the  United  States,  and  the  trans-  33,  s!  4. 
mission  to  the  seat  of  government  and  delivery  to  the  proper 

officer,  of  the  polls  in  the  manner  and  form,  and  within  the 
time  prescribed  for  the  same,  as  is  required  respectively  in  the 
chapter  entitled  "  governor  and  council"  and  "  electors  of  presi- 
dent and  vice-president,"  he  shall  for  such  offence  forfeit  and 
pay  the  sum  of  five  hundred  dollars,  to  be  recovered  in  the 
name  and  to  the  use  of  the  State,  on  motion  by  the  attoi-ney- 
general  in  the  superior  court  of  law  of  the  county  of  Wake, 
ten  days  previous  notice  in  writing,  of  such  intended  motion 
being  given  to  such  officer  by  the  secretary  of  State :  the  pro- 
ceedings thereon  shall  be  summary.  And  if  any  matter-of-fact 
shall  be  in  issue,  the  same  shall  be  tried  at  the  first  term ;  and 
on  such  trial,  or  for  any  other  purpose  in  the  prosecution  of 
such  motion  to  judgment,  the  certificate  of  the  secretary  of 
State,  or  of  the  governor,  as  the  case  may  be,  of  the  particular 
default  on  which  the  motion  shall  be  founded,  shall  be  re- 
ceived as  competent  primd  facie  evidence  to  prove  the  same  ; 
and  such  officer  shall  further  be  deemed  guilty  of  a  misde- 
meanor. 

114.  If  any  sheriff,  coroner,  or  returning  officer  whatever,  Wiifui  neglect 
shall  wilfully,  or  of  malice,  refuse  or  neglect  to  perform  any  pgrform'thelr 
duty,  act,  matter,  or  thing,  required  or  directed,  in  the  time,  dutyin  election 
manner,  and  form,  in  which  such  duty,  act,  matter,  or  thing  is  °[gj.°™.— """^ 
required  to  be  performed  in  relation  to  the  election  and  returns  1S42,  c.  so,  s.  5, 
thereof,  of  the  governor,  or  of  electors  for  president  and  vice- 
president  of  the  United  States,  the  person  so  offending  shall 

be  deemed  guilty  of  felony  ;  and  upon  conviction  shall  be  fined 
not  less  than  one  thousand,  nor  more  than  five  thousand  dol- 
lars, and  be  imprisoned  not  less  than  one,  nor  more  than  three 
years  ;  shall  be  disabled  from  holding  any  office  of  profit  or 
trust  under  the  authority  of  the  State,  and  shall  moreover  for- 
feit the  sum  of  one  thousand  dollars,  to  be  recovered  in  the 
court,  and  in  the  manner  in  the  last  section  dnected. 

115.  The  superior  court  of  law  of  tiie  county  of  Wake  shall  Ofibnccs,  juris- 
have  jurisdiction  of  all  offences  under  the  two  preceding  sec- ''"^"°"  "'■ 
tions  of  this  chapter ;  and  no  such  oftence  shall  be  pardoned  Not  panionod. 
nor  any   of  the   penalties   therefor   be  remitted  by  the    gov-  ~J"''''^'  '^"  ^^' 
ernor. 

116.  If  any  white  person  shall  play  with  any  slave  or  free  wiiito  persons 

playing  at 


226  CRIMES   AND   PUNISHMENTS.               [CuAP.  3-4. 

cards  witii  person  of  color,  at  any  game  of  cards,  or  at  any  game  of  haz- 

slaveor^free  ^^^^  chance,  or  skill  whatsoever,  either  with  or  without  betting 

c.Tse.        '  on  the  said  game,  he  shall  be  deemed   guilty  of  a  misde- 


meanor. 
Contempt  of         117.  Attachments  and  summary  punishments  for  contempt 
S'be-W46  of  court  shall  be  lawful  only  in  such  cases  of  misbehavior  as 
c.'cG,  s.'i,  2.   '  are  done  or  committed  in  the  presence  of  the  court,  or  so  near 
thereto  as  to  obstruct  the  administration  of  justice ;  incases 
of  misbehavior  of  the  officers  of  court  in  their  official  transac- 
tions; in  cases  of  disobedience  or  resistance  by  any  such  offi- 
cer, or  by  any  party,  witness,  juror,  or  other  person  to  any 
lawful  writ,  process,  order,  decree,  or  command  of  the  court ; 
and  in  every  instance  where  the  court  shall  issue  an  attach- 
ment, or  shall  adjudge  or  award  any  summary  punishment  for 
contempt  of  court,  tiie  court  shall  cause  the  particulars  of  the 
ofience  to  be  specified  on  the  record,  and  in  every  conunittal, 
attachment,  writ,  or  process  in  nature  of  an  execution  founded 
upon  such  judgment  or  award,  or  in  a  written  schedule  thereto 
annexed  and  therein  referred  to,  such  particulars  of  the  offence 
shall  be  set  out ;  otherwise  the  same  shall  be  deemed  unlaw- 
ful and  void. 
Constables  fail-      Hy.    Any  constable  refusing  or  neglecting  to  retm-n  any 
~s^or  ma-  precept,  notice,  or  process  to  him  tendered  or  delivered,  which 
king  false  re-    it  is  his  duty  to  execute,  or  making  a  false  return  thereon;  or 
sueh^'thout"'  any  person  who  shall  presume  to  act  as  constable,  not  being 
authority.-R.  by  law  authorized  so  to  do,  shall  forfeit  and  pay  to  any  one 
o'JiX'si.^^'   who  will  sue  for  the  same  one  hundred  dollars,  and  shall  more- 

over  be  deemed  guilty  of  a  misdemeanor. 
Officers  failing       119.    If  any  clerk  of  the  county  or  superior  court,  clerk  and 
to  discharge      piaster  in  equity,  sheriff,  or  any  other  officer  in  the  State,  who 

their  duties  m-  '""■'"'^'     '        1       J'  .     '  J  j.    i. ,    „„    „^*1,  ,->f 

dictabie.— R.S.  is  requn-ed,   m   entermg  upon  his   office,  to   take   an   oatli  oi 
0.19,8.14.        office,  shall  wilfuUy  omit,  neglect,  or  refuse  to  discharge  any 
of  tlie  duties  of  his  office,  for  default  whereof  it  is  not  else- 
where provided  that  he  shall  be  indicted,  the  clcrk  or  other 
officer  so  offending  shall  be  deemed  guilty  of  a  misdemeanor. 
Misdemeanors       120.    Offences    made    misdemeanors    by    statute,    where    a 
""uni'sheTas  at  Specific  punishment  is  not  prescribed,  shall  be  punished  as  mis- 
common  law',    demeanors  at  common  law;  but  the  punishment  of  tlie  pillory 
wlle'directed    shall  be  used   only  for  crimes  that  are  infamous  or  done   in 
by  statute.       secrecy  and   malice,  or  done  with  deceit  and  intent  to  de- 
fraud. 


Sect.  2.  Burglary,  9  Iro.  463;  13  lb.  244.     Arson,  3  Ire.  670. 
Sect.  5.  8  Ire.  305;  4  lb.  224. 
Sect  7    6  Ire  360 

Sect!  10.  3  Mur.  12;  12  lie.  157;  9  lb.  110;  2  D.  &  B.  390;  2  Cur.  I..  I!.  201.     \\nu(, 
Bus.  191. 
Sect.  12.  Bus.  9. 
Sect.  14.  7  Ire.  89;  1  lb.  121. 
Sect.  15.  2  Dev.  222;  2  Ire.  840. 
Sect.  20.  3  Hawks,  818. 
Sect.  28.  4  Hawks,  850;  3  Mur.  480. 
Sect.  39.  2  Car.  L.  B.  633. 


Chap.  35.] 


CRIMINAL   PROCEEDINGS. 


227 


Sect.  40.  X2  Ire.  130. 
Sect.  41.  6  Ire.  229;  2  Dev.  213. 
Sect.  45.  3  Dev.  331;  3  D.  &  B.  110;  4  Ire.  231.      ' 
Sect.  47.  1  D.  &  B.  119. 
Sect.  48.  1  Hawks,  4S7. 
Sect.  49.  6  Ire.  5;  Bus.  402. 
Sect.  56.  13  Ire.  338. 
Sect.  57.  7  Ire.  251;  2  lb.  153. 

Sect.  59.  13  Ire.  491;  3  lb.  474;  2  D.  &  B.  348;  3  Dev.  122;  2  lb.  443.      Wliat  not 
forijery,  6  Ire.  79;  7  lb.  206. 

Sect.  60.  2  Hawks,  248 ;  lb.  443. 

Sect.  61.  5  Ire.  287.     Slaves  not  includal  Bus.  214. 

Sect.  65.  3  Hawks,  191. 

Sect.  67.  11  Ire.  477;  4  Hawks,  348;  2  Dev.  199;  1  D.  &  B.  408;  3  Hawks,  620. 

Sect.  72.  Shuflle  board,  8  Ire.  266.     Tenpins,  8  Ire.  271. 

Sect.  75.  4  D.  &  B.  185;  1  Ire.  14;  9  lb.  378. 

Sect.  81.  3  D.  &  B.  125. 

Sect.  85.  4  Ire.  246 ;  6  lb.  82. 

Sect.  67.  9  Ire.  356;  7  lb.  275;  1  D.  &  B.  199;  2  Dev.  299. 

Sect.  89.  1  Ire.  115. 

Sect.  94.  1  Ire.  384 ;  4  D.  &  B.  107. 

Sect.  98.  10  Ire.  336;  12  lb.  178. 

Sect.  103.  Bus.  197;  13  Ire.  36;  lb.  341. 

Sect.  116.  2  D.  &  B.  29. 


CHAPTEK    35, 


CREVIINAL  PROCEEDINGS. 


Section 

1.  Duty  of  magistrates    in   committing 

criminals.  Examination  of  crimi- 
nals and  witnesses  when  evidence. 

2.  Dutj'  of  sheriffs  and  others,  officers  in 

arresting  criminals.  All  persons  to 
aid  officer. 

3.  Persons  to  be  imprisoned  in  common 

jail  of  county.     Proviso  as  to  sheriff. 

4.  Governor  may  employ  agent,  or  offer 

reward,  for  apprehension  of  fugi- 
tives, charged  with  capital  offences. 

5.  Fugitives,  from  other  States,  ch.arged 

with  high  crimes,  committed. 

6.  Ko  person  to  be  arrested  on  a  present- 

ment, &c. 

7.  Names  of  witnesses,  t&c.)  indorsed  on 

presentment. 

8.  Indictments  for  misdemeanors,  except 

perjury,  &e.,  to  be  commenced  in 
two  yearrs,  if  the  offender  is  known. 
Proviso,  where  indictment  is  defec- 
tive. 

9.  Criminal  process  to  issue  and  be  re- 

turnable at  any  time.  Proceedings 
to  be,  .as  heretofore. 

10.  Sheriff  to  indorse  on  process  and  sub- 

poenas, day  of  receiving  and  execut- 
ing them. 

11.  To  take  bail,  when  offence  is  bailable. 

ShiiU  not  become  bail  himself 


Section 

12.  Persons  convicted  of  misdemeanors, 

allowed  bail  pending  their  appeal. 

13.  Accused,  entitled  to  counsel. 

14.  Indictments,  &c.  not  quashed  or  judg- 

ment stayed,  for  formal  objections. 

15.  Proceedings  of  court,  how,  and  what 

part  set  forth  in  indictments. 

16.  What  set  forth,  in  indictment  for  per- 

17.  Wh-it,  for  subornation  of  perjury. 

IS.  In  indictment  for  second  offence,  how 
first  conviction  stated. 

19.  How  ownership  of  property  stated. 

20.  Certain  defects  not  to  vitiate  indict- 

ments. 

21.  Intent  to  defraud ;  what  statement  and 

proof  thereof  sufficient. 

22.  Party  whose  name  is  forged,  compe- 

tent witness. 

23.  Counts  joined  for  trading  with  slaves, 

receiving  stolen  goods,  &c. 

24.  Crimes  committed  on  waters  dividing 

counties,  where  tried. 

25.  How  improper  venue  taken  advantage 

of.  By  plea  in  abatement.  On  issue 
joined,  what  judgment  rendered  in 
misdemeanors.     What  in  felonies. 

26.  In  indictment  for  libel,  defendant  may 

give  the  truth  iu  evidence. 


228 


CBIMINAL  PROCEEDINGS. 


[ClIAP.    35. 


Section 

27.  Assault  and  death  in  different  coun- 

ties, trial  where  assault  was  made. 

28.  Assault  in  this  State  and  death  out  of 

it,  trial  in  this  State. 

29.  Plea  entered  for  defendant,  who  stands 

mute. 

30.  In  capital  cases,  judge  may  issue  a 

special  renire. 

31.  Penalty  on  sheriff  not  executing  it, 

and  jurors  not  attending. 

32.  In  capital  cases,  defendant  may  chal- 

lenge twenty-three  jurors;  in  others, 
four.    Allowed  aid  of  counsel. 

33.  State  may  challenge  four  jurors,  in 

capital  cases  ;  in  others,  two. 

34.  On  conviction  for  robbing  or  stealing, 

goods  restored. 

35.  New  trial  granted  to  defendants. 
86.  A  day,  for  trial  of  crimes,  fixed  by 

county  and  superior  courts  ;    wit- 
nesses not  to  attend  till  such  day. 

37.  Pay    of    witnesses    in    State    eases. 

Court,  in  certain  cases,  may  direct 
prosecutor  to  pay  costs. 

38.  Judges  may  lessen,  or  remit,  recogni- 

zances, at  any  time. 


Duty  of  magis- 
trates in  com- 
mitting crimi- 
nals.—R.  S.  c. 
35,  s.  1. 


Section 

39.  Clerks  to  refund  remitted  forfeitures 

paid  into  office. 

40.  County  trustee  to  refund,  when  paid 

to  him. 

41.  Fines  remitted  or  lessened  by  county 

court,  when. 

42.  Forfeited  recognizances,  remitted  or 

lessened  before  judgment,  by  county 
court. 

43.  No  execution  to  issue  till  after  scire 

facias. 

44.  Joint  scire  facias  to  issue  on  forfeited 

recognizances. 

45.  How  scire  facias  executed. 

46.  Costs  paid  by  the  convicted,  &c. 

47.  Penalties  not  given  specially,  may  be 

recovered  by  any  one. 

48.  Recovered  in  the  name  of  the  State, 

when. 

49.  Prosecuting    officers,    to    direct   post 

mortem  examinations. 

50.  Persons  participating  in  unlawful  gam- 

ing, compelled  to  testify  of  the  gam- 
ing.   Not  to  be  prosecuted  therefor. 


Examination  of 
criminals  and 
witnesses, 
when  evidence. 


Duty  of  sheriffs 
and  other  offi- 
cers in  arrest- 
ing criminals. 


1  No  person  shall  be  committed  to  prison  for  any  criminal 
matter,  until  examination  thereof  be  first  had  betore  some 
magistrate,  who  shall  admit  the  party  to  bail,  if  bailable,  and 
shaU  record  the  examination  of  the  party,  and  also  the  full 
matter  given  in  evidence,  both  against  him  and  for  hnn,  with 
all  concurring  circumstances,  and  shall  take  recognizance,  with 
good  and  sufficient  sureties,  for  the  informer  to  appear  and 
prosecute,  as  the  law  of  the  State  directs,  and  likewise  for  all 
witnesses  for  the  State  to  appear  and  give  evidence  against 
the  criminal  at  the  next  court  where  the  matter  is  cognizable, 
ensuing  such  examination ;  which  examination  and  recogni- 
zance shall  be  subscribed  by  the  magistrate,  and  returned  to 
the  oflice  of  the  court  wherein  the  matter  is  to  be  tried  ;  and 
the  examination  so  taken  and  subscribed  by  the  magistrate 
may  be  used  as  evidence  before  the  grand-jury,  and  on  the 
trial  of  the  accused,  provided  he  was  present  at  the  taking 
thereof,  and  had  opportunity  to  hear  the  same,  and  to  cross- 
examine  the  deposing  witness,  if  such  witness  be  dead,  or  by 
procurement  or  connivance  hath  removed  from  the  State,  or  is 
71011  compos  mentis. 

2.  Whenever  a  felony,  or  any  crime,  the  purfishmcnt  where- 
of  for  the  first  or  second  offence  is  death,  or  any  part  of  the 
punishment  thereof  is  whipping  or  standing  in  the  pillory,  shall 
be  committed,  the  sheriff',  constables,  and  other  peiice-olliccrs, 
upon  information  thereof  received  by  them,  shall  forthwith 
pursue  and  arrest  the  person  committing  such  felony,  or  other 
crime  as  aforesaid ;  and  any  of  the  said  officers  shaU  call  to 


Chap.  35.]  criminal  proceedings.  229 

his  aid  and  assistance  as  many  of  the  citizens  of  the.  county  as  All  persons  to 
may  be   necessary  for  that  purpose ;  and   if  any  such  officer  re^'uSt"— r"s 
shall  refuse  or  wilfully  neglect  to  pursue  and  use  all  the  means  c! 35^3.  2. 
in  his  power  to  arrest  such  criminal,  or   if  any  person  sum- 
moned to  aid  and  assist  such  officer  in  the  pursuit  and  arrest 
of  such  criminal,  shall  refuse  or  wilfully  neglect  to  render  aid 
and  assistance,  every  such  officer  or  citizen  so  offending  shall 
be  deemed  guilty  of  a  misdemeanor. 

3.  No  person  shall  be  imprisoned  by  any  judge,  justice  of  Persons  to  be 
the  peace,  or  other  peace-officer,  but  only  in  the  common  jail  loim'fo"  jliUf 
of  the   county;  provided,  that  whenever  the   sheriff    of   any  county. 
county  shall  be  liable  to  be  imprisoned,  he  may  be  imprisoned  sherlff.-R.'s. 
in  the  jail  of  any  adjoining  county.  c.  35,  s.  4. 

4.  The  governor,  on  information  made  to  him  of  any  person  Gov.  may  em- 
having  committed  an  offence   of  a  capital  nature  within  the  P'°y  "S""*' "'" 
State,  and  of  having  fled  out  of  the  jurisdiction  thereof,  may  prehenIio'i'[o7' 
either  employ  a  special  agent,  with  a  sufficient  escort,  to  pur-  ^'fi'-t,';'"''''''-"'"; 
sue  and  apprehend  such  fugitive,  or  issue  his  proclamation,  offences.— R.'s. 
and  therein  offer  a  reward,  not  exceeding  four  hundred  dollars,  ■=•  ^^'  ^-  *• 
according  to  the  nature  of  the  case,  as  in  his  opinion  may  be 
sufficient  for  the  purpose,  to  be  paid  to  him  who  shall  appre- 
hend and  deliver  the  fugitive  to  such  person  and  at  such  place, 

as  in  the  proclamation  shall  be  directed ;  and  he  may,  from 
time  to  time,  issue  his  warrants  on  the  public  treasurer,  for 
sufficient  sums  of  money  for  such  purposes. 

5.  Any  judge  of  the  supreme  court,  or  of  the  superior  courts  Fugitives  from 
of  law,  or  justice  of  the  peace,  on  satisfactory  information  laid  cLar'^e^d  with 
before  him,  that  any  fugitive  in  the  State  has  committed,  out  h!gi'i°crin7e's, 
of  the  State  and  within  the  United  States,  any  murder,  larceny,  l^T'^^t'T^ 
or  other  felonious  offence,  or  any  other  offence,  although  but  a    '    '*''    '^'  ' 
misdemeanor  by  the  law  of  this    State,  the   punishment  of 

which  said  felonious  offences  and  misdemeanors  shall,  by  the 
law  of  this  State,  be  whipping,  branding,  pillory,  death,  or  any 
of  them,  shall  have  full  power  and  authority,  and  are  hereby 
required,  to  commit  said  fugitive  to  any  jail  within  the  State 
for  the  space  of  si.K  months,  unless  sooner  demanded  by  the 
public  authorities  of  that  State  wherein  the  offence  may  have 
been  committed,  agreeable  to  the  directions  of  the  Act  of  Con- 
gress in  that  case  made  and  provided ;  and  if  no  demand  be 
made  within  that  time,  the  said  fugitive  shall  be  liberated, 
unless  sutHcient  cause  be  shown  to  the  contrary. 

6.  No  person    shall  be  arrested  on   a  presentment  of  the  No  person  to 
grand-jury ;  or  put  on  trial  before  any  court,  but  on  indictment '"  "'"'"''''r' ""» 
found  by  the  grand-jury.  L'l-R.  s.'c   ' 

7.  When  a  presentment  shall  be  made  of  any  offence  by  a  Ifamesof  wit- 
grand-jury,  upon  the  knowledge  of  any  of  their  body,  or  upon  nes's"^  ft^'in- 
the  testimony  of  witnesses,  the  names  of  such  grand-jurors  and  t°ntme.r-T" 
witnesses  shall  be  indorsed  thereon.  "s.  c.  3.5,  s.  7. ' 

8.  All  misdemeanors,  e.\cept  the  offences  of  perjury,  foro-ery.  Indictments 
malicious  mischief,  and  other  malicious  misdemeanors,  d(T-eit,  eeprpcrjuV^" 
and  the  offence  of  being  accessory  after  the  fact,  now  made  a  ■S.^ • '"  ''<>  co'n- 

2Q  meuced  iu  two 


230  CRIMINAL   PROCEEDINGS.  [ClIAP.  35. 

vcars.if  offend-  misdemeanor,  shall  be  presented  or  found  by  ihe  grand-jury 
cr  is  known,     -^vithin  two  years  after  the  commission  of  the  same,  and  not 
afterwards.     Provided,  however,  that  in  case  any  of  the  said 
misdemeanors  hereby  required  to  be  prosecuted  within   two 
years,  shall  have  been  committed  in  a  secret  manner,  the  same 
may  be  prosecuted  within  two  years  after  the  discovery  of  the 
Proviso,  .vheie  offender.     And  provided  further,  that  if  any  indictment  found 
deSie-R    within  that  time  shall  be  defective,  so  that  no  judgment  can 
i.l'^zb%.  8.'   be  given  thereon,  another  prosecution  may  be  instituted  for  the 
same  offence,  within  one  year  after  the  first  shall  have  been 
abandoned  by  the  State. 
Criminal  pro-        9.    AH  process,  Warrants,  and  precepts,  issued  by  any  judge 
andbe  return-   or  justice  of  the   peace,  or  clerk  of  any  court,  on  any  crnnnial 
abieatany       prosecution,  may  issue  at  any  time,  and  be  made  returnable 
*™''-  to  any  day  of  the  term  of  the  court,  to  which  such  warrant, 

,.  ,  process,  or  precept  is  returnable;  and  the  proceedings  on 
be?«'he.X  criminal  prosecutions  shall  be  agreeable  to  the  practice  hereto- 
fore.—R.  s.  c.  fQj.g  jjj  yye^  except  where  the  same  may  be  otherwise  directed. 
Sheriff  to  in-  10.  Every  sheriff  shall  indorse  on  all  process  and  subpo-nas 
dorse  on  pro-  issuing  in  criminal  cases,  whether  for  the  State  or  delendant, 
pSnaTday  of  the  day  whcn  such  process  and  subpcenas  came  to  hand,  and 
receiving  and  ^^jg^  ^j^g  jj^y  of  ^^eir  execution;  and  on  failure  of  any  sheriH 
ttien^-Tsso,  to  perform  either  of  said  duties,  he  shall  forfeit  and  pay  the 
"■  "•  sum  of  ten  dollars  for  every  case  of  neglect,  to  be  recovered 

for  the  use  of  the  State,  in  the  same  manner  as  forfeitures  are 
recovered  against  sheriffs  by  parties  in  civil  suits,  for  failure  to 
make  due  return  of  process  delivered  to  them. 
To  take  bail  11.    When  any  sheriff  or  his  deputy  shall  arrest  the  body  of 

iviien  offence  is  ^  person,  in  consequence  of  the  writ  of  capias  issued  to  him 
bailable.  ^^^^  ^j^^j_  ^^  ^  ^^^^^  ^^  recoxA  on  an  indictment  found,  the 

said  sheriff  or  deputy,  if  the  crime  is  bailable,  shall  recognize 
the   offender,  and  take   sufficient  bail  in  nature  of  a  recogni- 
zance, for  his   appearing  at  the   next  succeeding  court  of  the 
Shall  not  be-    county,  where  he  ought  to  answer ;  which  recognizance  shall 
come  bail  him-  be  returned  with  the  capias  ;  and  the  sheritl  shall,  in  no  case, 
35"^8~w  ^' '''    become  bail  himself. 

BaVaiiowed  12.    When   any  person   convicted  of  a   misdemeanor,  and 

pending  appeal,  sentenced  by  the  court,  shall  appeal,  the  court  shall  allow  such 
-1850,  c.   .  j^g^j^  ^p  g-yg  l3jj^ij^  pending  his  appeal. 

Accused,  en-  13.  Every  person,  accused  of  any  crime  whatsoever,  sliall 
Iei'.-R°s?c""  be  entitled  to  counsel  in  aU  matters  which  may  be  necessary 
35,  s.  11.  for  his  defence. 

Indictments,  ^4  Every  criminal  proceeding  by  indictment,  information, 
fd  ^r'Tudgmt' or  impeachment,  shall  be  sufficient  in  form  for  all  intenls  and 
staveci,  for  purposes,  if  it  express  the  charge  against  the  defendant  in  a 
[lonT-ll!''!:  plain,  intelligible,  and  explicit  manner;  and  the  same  shall  not 
c.  35,  s.  12.  be  quashed,  nor  the  judgment  thereon  stayed,  by  reason  ol  any 
informality  or  refinement,  if  in  the  bill  or  proceeding  suihcient 
matter  appears,  to  enable  the  court  to  proceed  to  judgment. 
Proceedin-s  of  15.  In  every  indictment,  inforination,  or  impeachment  in 
Xt  palT'"'"'  which,  by  the  common  law,  it  may  be  necessary  to  set  fortii  at 


'M 


Chap.  35.]  criminal  proceedings.  231 

length  the  judicial  proceedings  had  in  any  case  then  or  for- set  forth  in  in- 
merly  pending  in  any  court  civil  or  military,  of  law  or  equity,  or  t"'''™'^"'*- 
before  any  justice  of  the  peace,  it  shall  be  sutEcient  to  set  forth 
the  substance  only  of  said  proceedings,  or  the  substance  of 
such  part  thereof  as  make,  or  help  to  maiie,  the  oflence  prose- 
cuted. 

16.  In  every  indictment  for  wilful   and  corrupt  perjury,  it  Wimt  «ot  forth 
shall  be  sufficient  to  set  forth  the  substance   of  the  offence  f"r'pcrju,'y.- 
charged  upon  the  defendant,  and   by  what   court,  or  before  18«,  c. 49,  s.i. 
whom,  the  oath  was  talcen,  (averring  such  court,  or  person  to 

have  competent  authority  to  administer  the  same,)  together 
with  the  proper  averments  to  falsify  the  matter  wherein  the 
perjury  is  assigned,  without  setting  forth  the  bill,  answer,  in- 
formation, indictment,  declaration,  or  any  part  of  any  record 
or  proceedings,  either  in  law  or  equity  other  than  aforesaid, 
and  without  setting  forth  the  commission  or  authority  of  the 
court,  or  person,  before  whom  the  perjury  was  committed. 

17.  In  every  indictment  for  subornation  of  perjury,  or  for  What,  for  sub- 
corrupt  bargaining,  or  contracting  with  others  to  commit  wil-  ""y'^lY/^f  i"" 
ful  and  corrupt  perjury,  it  shall  be  sufficient  to  set  forth  the  «,  s'.  2. 
substance  of  the  offence  charged  upon  the  defendant,  without 

setting  forth  the  bill,  answer,  information,  indictment,  decla- 
ration, or  any  part  of  any  record  or  proceedings,  either  in  law 
or  equity,  and  without  setting  forth  the  commission  or  author- 
ity of  the  court  or  person,  or  persons,  before  whom  the  per- 
jury was  committed,  or  was  agreed  or  promised  to  be  com- 
mitted. 

18.  In  any  indictment  for  an  offence,  which,  on  the  second  In  indictment 
conviction  thereof,  is  punished  with   other  or  greater  punish-  feLT^ow  first 
ment  than  on  the  first  conviction,  it  shall  be  sufficient  to  state,  conviction 
that  the  offender  was,  at  a  certain  time  and  place,  convicted  ^^'''^'^' 
thereof,   without  otherwise    describing  the    previous   offence ; 

and  a  transcript  of  the  record  of  the  first  conviction,  duly  cer- 
tified, shall,  upon  proof  of  the  identity  of  the  person  of  the 
offender,  be  sufficient  evidence  of  the  first  conviction. 

19.  In  any  indictment  wherein  it  shall  be  necessary  to  state  How  own'rship 
the  ownership  of  any  property  whatsoever,   whether  real  or  erf  mIcM  in™"'" 
personal,  which  shall  belong  to,  or  be  in  the  possession  of  more  common,  &c. 
than  one  person,  whether   such  persons  be  partners  in  trade, 
joint-tenants,  or  tenants  in  common,  it  shall  be  sufficient  to 

name  one  of  such  persons,  and  to  state  such  property  to  be- 
long to  the  person  so  named,  and  another,  or  others,  as  the 
case  may  be :  and  whenever,  in  any  such  indictment  it  shall 
be  necessary  to  mention,  for  any  purpose  whatsoever,  any 
partners,  joint-tenants,  or  tenants  in  common,  it  shall  be  sufii- 
cient  to  describe  them  in  the  manner  aforesaid  ;  and  this  pro- 
vision shall  extend  to  all  joint-stoclc  companies  and  trustees. 

20.  No  judgment  upon  any  indictment  for  felony  or  misde-  portnin  defccts 
meanor,  whether  after  verdict,  or  by  confession,  or  otherwise,  uot'to''vmat".'* 
shall  be  stayed  or  reversed  for  the  want  of  the  averment  of 

any  matter  unnecessary  to  be    proved,   nor  for  omission   of 


232  CRIMINAL   PROCEEDINGS.  [ChAP.    35. 

the  words  "as  appears  by  the  record,"  or  of  the  words  "  with 
force  and  arms,"  nor  for  the  insertion  of  the  words  "  against 
the  form  of  the   Statutes  "  instead  of  the  words  "  against  the 
form  of  the  Statute,"  or  vice  versa ;  nor  for  omitting  to  state 
the  time  at  which   the  offence  was  committed,  in  any  case 
where  time  is  not  of  the  essence  of  the  offence,  nor  for  stating 
the  time  imperfectly,  nor  for  stating  the  offence  to  have  been 
committed  on  a  day  subsequent  to  the  finding  of  the  indict- 
ment, or  on  an  impossible  day,  or  on  a  day  that  never  hap- 
pened ;  nor  for  want  of  a  proper  and  perfect  venue,  when  the 
court  shall  appear  by  the  indictment  to  have  had  jurisdiction 
of  the  offence. 
Intent  to  <le-         21.    In  any  case,  where  an  intent  to  defraud  is  required  to 
fraud:  what     constitute  the  offence  of  stealing  and  carrying  away   slaves 
"the'eof    beyond  the  limits  of  the  State,  or  to  constitute  the  ottence  of 
sufficient.—     foro-ery,  or  any  other  offence  whatever,  it  shall  be  sutffcient  to 
1852,  c.  87,s.2.  ^jjft^^^  .^^  ^^^  indictment,  an  intent  to  defraud,  without  naming 
therein  the  particular  person  or  body  corporate  intended  to  be 
defrauded;    and  on  the  trial  of  such  indictment,  it  shall  be 
sufficient,  and  shall  not  be  deemed  a  variance,  if  there  appear 
to  be  an  intent  to  defraud  the   United  States,  or  any  State, 
county,  city,  town,  or  parish,  or  body  corporate,  or  any  public 
officer,  in  his  official  capacity,  or  any  copartnership  or  member 
thereof,  or  any  particular  person. 
Party  whose        22.    No  person  shall  be  deemed  to  be  an  incompetent  wit- 
name  is  forged,  j^^^,^  j^    reason  of  any  interest  which  such  person  may  have, 
competent  wit-  ^^-^  g^.ppoged  to  have  in  respect  to  any  deed,  writing,  instru- 


ness 


ment,  or  other  matter  whatsoever,  in  support  of  any  prosecu- 
tion, wherein  shall  be  questioned  the  fact  of  forging  such  deed, 
writing,  instrument,  or  other  matter  whatsoever,  or  the  fact  of 
uttering,  showing  forth  in  evidence,  or  disposing  thereof,  know- 
ing the  same  to  be  forged. 
Counts  joined        23.    The  defendant  may  be  charged  in  the  same  indictinent, 
for  trading  with  j^^  geveral   counts,  with  the  separate   oflences   of  unlawfully 
sMenVoX^trading  with  slaves,  receiving  stolen  goods  knowing  them  to 
&c.-i844,c.   ^g  stolen,  and  larceny. 

Crimes  com-         24.    When  any  offence  shaU  be  committed  on  any  water,  or 

SvkUfT  watercourse,  whether  at  high  or  low-water,  which  said  water, 

counties, wlicre  or  watercourse,   or   the   sides    or    shores  thereof,  shall  divide 

'"'*'•  counties,   such  offence  may  be  dealt  with,  inquired  of,  tried 

and  determined,  and  punished  at  the  discretion  of  the  court, 

in  either  county   of  those  two   which   may  be  nearest  to  the 

place  where  the  offence  was  committed. 

How  improper       25.    And  because  the  boundaries  of  many  counties  are  either 

venue  taken      undetermined,  or  unknown,  by  reason  whereof  high  oflences  go 

advantaged.    ^^^^^1^.^^,^^^  .    therefore,  for  the  more  effectual  prosecution  of 

offences  committed  on  land,  near  the  boundaries  of  counties, 

be  it  enacted,  that  in  the  prosecution  of  all  offences,  it  shall  be 

deemed   and  taken  as  true,  that  the  oftence  was  committed 

in  the  county,  in  which  by  the  indictment  it  is  alleged  to  have 

"bt^'^'j.t       taken  place,  unless  the  defendant  shall  deny  the  same  by  plea 


Chap.  35.]  criminal  proceedings.  233 

in   abatement,   the   truth  whereof  shall    be  duly  verified   on 
oath,  or  otherwise,  both   as  to   substance   and  fact,   wherein 
shall  be  set  forth  the  proper  county,  in  which  the  supposed 
offence,  if  any,   was  committed  :   whereupon  the  court  may 
on  motion  of  the  State  commit  the  defendant,  who  may  enter 
into  recognizance,  as  in  other  cases,  to  answer  the  offence  in 
the  county  averred  by  his  plea  to  be  the  proper  county  ;  and 
on  his  prosecution  in  that  county,  it  shall  be   deemed,  con- 
clusively, to  be  the  proper  county.     But  if  the  State  upon  the  Onissuejoined, 
plea  aforesaid,  will  join  issue,  and  the  matter  be  found  for  the  J^nd'eredflT'"" 
defendant,   he   shall  be  altogether  discharged ;    and   if  it  be  misdemeiinors 
found  for  the  State,  the  court  in  all  offences  of  misdemeanor,  "j^'j"'''  "'  '*^'" 
shall  proceed  to  pronounce  judgment  against  the  defendant, 
as  upon  conviction  ;  and  in  all  cases  of  felony,  the  defendant 
shall  be  at  liberty  to  plead  to  the  indictment,  and  be  tried  on 
his  plea  of  not  guilty. 

26.  Every  defendant  who  shall  be  charged  by  indictment  In  indictment 
with  the  publication  of  a  libel,  may  prove  on  the  trial  for  the  mav'gWe  ttie' 
same,  the  truth  of  the  facts  alleged  in  the  indictment;  and,  if  trutii  in  evi- 
it  shall  appear,  to  the  satisfaction  of  the  jury,  that  the  facts  are  e.^3B';r"it  ®- 
true,  the  defendant  shall  be  acquitted  of  the  charge. 

27.  In  all   cases   of  felonious   homicide,  when   the   assault  Assault  and 
shall  have  been  made  in  one  county  within  the  State,  and  the  en^ cxjlTntiesr" 
person   assaulted   shall  die   in   any  other  county  thereof,  the  '""J  ^vhere  as- 
offender  shall  be  indicted  and  punished  for  the   crime  in  the  ss^s.Ts.' 
county  wherein  the  assault  was  made. 

28.  In   all  cases    of  felonious   homicide,  when  the  assault  Assault  in  this 
shall  have  been  made  within   this   State,  and  the  person  as-  oufoAtttial" 
saulted  shall  die  without  the  limits  thereof,  the  offender  shall  in  this  state.— 
be  indicted  and  punished  for  the  crime  in  the  county  where  J*^-^- <^- ^^' s- 
the  assault  was  made,  in  the  same  manner,  to  all  intents  and 
purposes,  as  if  the  person  assaulted  had  died  within  the  limits 

of  this  State. 

29.  If  any  person,  being  arraigned  upon  or  charged  in  any  piea  entered 
indictment  for  any  crime,  shall  stand  mute  of  malice,  or  will  ^tL'dfmrt'"'— 
not  answer  directly  to  the  indictment,  the  court  shall  order  the  rI^s.  c.^Vs- 
plea  of  "  not  guilty  "  to  be  entered  on  behalf  of  such  person  ;  ^®- 

and  the  plea  so  entered  shall  have  the  same  force  and  effect  as 
if  such  person  had  pleaded  the  same. 

30.  Whenever  a  judge  of  the  superior  court  shall  deem  it  In  capital 
necessary  to  a  fair  and  impartial  trial  of  any  person  charsred  (^"^es,  judge 

•  j.1  -J.    1      /r  I  •  1         .       •  rv     /.  luav  issue  a 

With  a  capital  ottence,  he  may  issue  to  the  sherm  of  the  coun-  special  renire. 
ty  in  which  the  trial  may  be,  a  special  writ  of  venire  facias,  ~^j^-'''^^' 
commanding  him  to  summon  such  number  of  the  freeholders 
of  said  county  as  the  judge  may  deem  sufficient,  (such  num- 
ber being  designated  in  the  WTit,)  to  appear  on  some  specified 
day  of  the  term  as  jurors  of  said  court;  and  the  sheriff  shall 
forthwith  execute  the  writ,  and  return  it  to  the  clerk  of  tlie 
court  on  the  day  when  the  same  shall  be  returnable,  with  the 
names  of  the  jurors  summoned. 

31.  If  any  sheriff  shall  fail  duly  to  execute  and  return  such  Penalty  nu 


20* 


shcriti'  not 


234  CRIMINAL   PROCEEDINGS.  [ChAP.    35. 

executing  it,  Writ  of  venire  facial,  he  shall  be  fined  by  the  court  not  exceed- 
and  jurors  jng  one  hundred  dollars;  and  all  jurors  so  summoned  shall 
%Ttst  atfend  until  discharged  by  the  court,  under  the  same  rules  and 
8- 18'  penalties  as  are  prescribed  for  other  jurors.  ,  •    ,-f 

In  capital  32.    Every  person,  whether  bond  or  free,  on  trial  for  his  lile, 

cases  dert may  ^  ^^^j.g  ^  peremptory  challenge  of  twenty-three  jurors  and 
twe"tv?u,rce  „o  more  ;  and  in  all  trials  for  crimes  and  misdemeanors,  other 
jurors,  in  others  ^^^^^  capital,  the  defendants  shall  have  the  right  of  challenging 
S"of  counsel,  peremptorily,  and  without  showing  cause,  four  jurors  and  no 
-E.  S.  c.  35,  |^^j.p  "^^^j  ^o  enable  defendants  to  exercise  this  right,  the  clerk 
'■  "'  in  all  such  trials  shall  read  over  the  names  of  the  jurors  on  the 

panel,  in  the  presence  and  hearing  of  the  defendants  and  their 
counsel,  before  the  jury  shall  be  impanelled  to  try  the  issue ; 
and  in  all  trials,  whether  for  capital  or  inferior  oftences,  the 
defendants  may  have  the  aid  and  assistance  of  counsel  in 
making  challenges  to  the  jury.  ,    i    u-    r 

State  may  83.    In  all  capital  cases,  the  prosecuting  officer  on   behait  ot 

challenge  four  ^j^^  g^^^^  gj^j^^  jj^ye  the  right  of  challenging  peremptorily  lour 
n^JilVfa"'"  jurors.     Provided,  said  challenge  is  made  before  the  juror  is 
others  two  -    {^^^^,^,,1  to  the  prisoner  ;  and  if  he  will  challenge  more  than 
^•^•''    '        four  jurors  he  shall  assign  for  his  challenge  a  cause  certam ; 
and  in  all  other  cases  of  a  criminal  nature,  a  challenge  of  two 
jurors  shall  be  allowed  in  behalf  of  the- State,  and  challenges 
also  for  a  cause  certain  :  and  in  all  cases  of  challenge  for  cause 
certain,  the  same  shall  be  inquired  of  according  to  the  custom 
of  the  court. 
On  conviction       34.    Upon  the  conviction  of  any  felon  for  robbing  or  stealing 
for  robbing  or  moiiev,  goods,  chattels,  or  other  estate  of  any  description 

Se§.it^  whatever,  the  person  from  whom  such  goods,  money  chattels, 
S.C.35,  s.  22.    ^j.  ^^[jgj.  pgf^tj,  ^yej.g  robbed  or  stolen,  shall  be  entitled  to  resti- 
tution  thereof;    and  the  court  may  award  restitution  of  the 
articles  so   robbed  or  stolen,  and   make   all  such  orders  and 
issue  such  writs  of  restitution  or  otherwise,  as  may  be  neces- 
sary for  that  purpose.  ■     •     i 
New  trial  to          35.    The   courts   of  law  may  grant  new  trials  in  criminal 
3fs'!'27.'^^'°' eases,  when  the  defendant  is  found  guilty,  under  the  same 

'  rules  and  regulations  as  in  civil  cases. 

A  day  for  trial  36.  The  county  and  superior  courts  shall  appoint  a  special 
ofcrimesfixedj  jij  ^heir  respective  terms,  on  which  the  business  of  the 
X'rcou^"'  State  shall  be  disposed  of;  and  the  court  may  proceed  there- 
witnesses  not  to  ^j^i^  ^jii  ji,^,  ^vhole  is  finished.  And  no  witness  recognized  or 
r;:-K™:  summoned  to  attend  on  indictment  found,  shall  be  entitled  to 
35,8.25.  compensation  for  attending  previous  to  the  day  so  appointed. 

Provided  neverl/icless,  that  in  capital  cases,  witnesses  and  other 
persons  may  be  required  to  attend  on  the  day  preceding  the 
day  aiipoiiited  as  aforesaid;  and  the  clerk  of  the  court  in 
which  a  day  is  thus  appointed,  shall  give  notice  thereof  at  the 
court  house;  door,  and  three  or  more  public  places  in  the  county, 
and  shall  issue  subpoenas  and  take  recognizances  for  attend- 
ance on  such  day.  _  u  i  ir  r  *u 
Payofwitness-      37.    All  witnesses  summoned  or  recognized  in  behall  ot  tue 


Chap.  35.]  criminal  proceedings.  235 

State,  shall  be  allowed  the  same  pay  for  their  daily  attend-  cs  in  State 
ance,  ferriage,  and  mileage  as  is  allowed  to  witnesses  attending  '^''^®*' 
in  civil  suits ;  and  such  fees  for  attendance  shall  be  paid  by 
the  defendant,  only  upon  conviction,  confession,  or  submission  ; 
and  if  the  defendant  be  acquitted  on  any  charge  of  an  inferior 
nature,  or  a  nolle  prosequi  be   entered  thereto,  the   court  may, 
at  discretion,  order  the  prosecutor  to  pay  the  costs,  if  such 
prosecution  shall  appear  to  have  been  frivolous  or  malicious ; 
but  if  the  court  shall  be  of  opinion  that  such  prosecution  was 
neither  frivolous  nor  malicious,  and  a  greater  number  of  wit- 
nesses have  been  summoned  than  were,  in  the  opinion  of  the  to'incVs"s''may 
court,  necessary  to  support  the  charge,  they  may,  nevertheless,  direct  proseou- 
order  the  prosecutor  to  pay  the  attendance  of  such  unnecessary  costs!-i^K!  S.c. 
witnesses,  if  it  appear  that  they  were  summoned  at  his  special  35, s.  27. 
request. 

38.  The  judges  of  the  superior  courts  may  hear  and  deter- Judges  may 
mine  the  petition  of  all  persons,  who  shall  conceive  they  merit  reCTgni°znnc™f 
relief  on  their  recognizances  forfeited ;  and  may  lessen,  or  ab-  :it  jny  time.— 
solutely  retnit  the  same,  and  do  all  and  any  thing  therein,  as  ^^•'^•'=' 35.^-28. 
they  shall  deem  just  and  right  and  consistent  with  the  welfare 

of   the    State   and  the   persons  praying    such    relief,   as   well 
before,  as  after  final  judgment  entered  and  execution  awarded. 

39.  The  clerk  of  the  superior  court,  on  the  remission  of  any  Clerk  to  refund 
forfeited  recognizance  which  has  been  paid  into  his  oflice,  urTs'pa'id'In'to 
shall  refund  the  same,  or  so  much  thereof,  as  shall  be  remitted,  office.— E.  S.c. 

40.  If  the  money  has  been  paid  to  the  county  trustee,  he  cfjuiity^'tmstee 
shall  refund  it  to  the  person   entitled,   on   his  producing   an  to  refund,  when 
attested  copy  of  the  record  from  the  clerk  of  the  court,  certify-  k^'s.'".  35^"" 
ing  that  such  recognizance  hath  been  remitted  or  lessened,  ^-  ^o- 
signed  with  his  own  proper  name,  with  the  seal  of  the  court 

affixed  thereto. 

41.  The  court  of  pleas  and  quarter-sessions  may  remit  or  Fines  remitted 
lessen,  during  the  term,  any  fine  imposed.     Provided,  there  be  co.  iourt'wlien^ 
seven  justices  on  the  bench  at  the  time  of  such  remission  or  — R- S- c.  35, 
lessening,  three  of  whom  shall  have  been  on  the  bench  at  the  ^"  ^^' 
laying  of  the  fine. 

42.  The  court  of  pleas  and  quarter-sessions  may  remit  or  Forfeited  re- 
lessen,  previous  to  entering  final  judgment,  all  forfeitures  on  Singles!' 
recognizances.     And  from   every  judgment,   which    the    said  sened  before 
court  may  render  on  a  scire  facias  to  have  execution  on  any  io'^couTt'— R 
forfeited  recognizance,  the  defendant,  or  the  State  may  appeal  S.c.  35,  s.  3i'. 
to  the   superior  court ;    and  the  county  solicitor  is    expressly 
instructed  to  appeal,  when,  in  his  opinion,  the  State  by  such 
judgment  is  injured.     On  such  appeal  the  judge  may  remit  or 

lessen  the  forfeiture,  as  though  it  had  been   incurred   in   the 
superior  court. 

43.  No  execution  shall  issue  upon  a  forfeited  recognizance.  Execution  not 
or  to  collect  a  fine  imposed  nisi,  until  a  scire  facias  has  issued  '".issue  till 
against  the  person  who  has  forfeited  his  recognizance,  or  upon  T.Z'"io'!t^. 
whom  the  fine  has  been  imposed. 

44.  When  any  recognizance,  acknowledged  by  a  principal  Joint  jri./a.  to 


236 


issue  on  for- 
feited recog- 
nizances.— R. 
S.  c.  35,  s.  33. 


How  sci.  fa. 
executed. — R. 
S.c.  35,  6.  34. 


Costs  paid  by 
convicted,  &c. 


Penalties  not 
given  special!}-, 
recovered  by 
any. 


Recovered  in 
name  of  State, 
■when. 

Prosecuting  of- 
ficers to  direct 
post  itiorteni  ex- 
amiuatious. 


Persons  parti- 
cipating in  un- 
lawful gaining, 
compelled  to 
testify  of  the 
gaming. 
Not  to  be  pros- 
ecuted there- 
for. 


CEIMINAL   PROCEEDINGS. 


[Cn.\P.    35. 


and  sureties,  shall  be  forfeited  by  two  or  more  of  the  recog- 
nitors, the  scire  facias  issued  thereon  shall  be  jointly  agauist 
them  all,  designating  which  of  them  are  principals  and  which 
sureties,  and  when  they  are  bound  in  ditlerent  sums,  stating 
the  amount  forfeited  by  each  one  :  and  the  clerk  shall  have  no 
greater  fee  on  such  scire  facias,  than  is  due  when  it  is  issued 
against  one  defendant.  .    c  ■     j 

45.  All  process  of  scire  facias  issuing  upon  forfeited  recog- 
nizances, shall  be  executed  by  leaving  a  copy  with  each  of  the 
defendants,  or  at  his  present  place  of  abode.  And  in  case  he 
cannot  be  found,  and  has  no  known  place  of  abode,  and  the 
matter  be  returned,  then  an  alias  scire  facias  shall  issue,  and 
on  the  like  return,  the  same  shall  be  deemed  duly  served. 

46.  Every  person  convicted  of  an  offence,  or  confessing 
himself  guilty,  or  submitting  to  the  court,  shall  pay  the  costs 
of  prosecution. 

47.  Where  a  penalty  may  be  imposed  by  any  law  passed, 
or  hereafter  to  be  passed,  and  it  shall  not  be  provided  by  the 
law  to  what  person  the  penalty  is  given,  it  may  be  recovered 
by  any  one  who  will  sue  for  the  same,  and  for  his  own  use. 

48.  Whenever  any  penalty  shall  be  given  by  statute,  and  it 
is  not  prescribed  in  whose  name  suit  therefor  may  be  com- 
menced, the  same  shall  be  brought  in  the  name  of  the  State. 

49.  In  all  cases  of  homicide,  any  officer  prosecuting  lor  the 
State  may,  at  any  time,  direct  a  post  mortem  examination  of 
the  deceased  to  be  made  by  one  or  more  physicians  to  be 
summoned  for  the  purpose ;  and  the  physicians  shall  be  paid  a 
reasonable  compensation  for  such  examination,  the  amount  to 
be  determined  by  the  court  and  taxed  in  the  costs,  and  if  not 
collected  out  of  the  defendant,  the  same  shall  be  paid  by  the 

county. 

50.  No  person  shall  be  excused,  on  any  prosecution,  trom 
testifying  touching  any  unlawful  gaming,  done  by  himself  or 

'  others  •  but  no  discovery,  made  by  the  witness  upon  such 
examination,  shall  be  used  against  him,  in  any  penal  or  crim- 
inal prosecution,  and  he  shall  be  altogether  pardoned  of  the 
ofience  so  done,  or  participated  in  by  him. 


Sfct  1.  Bus.  239.     Recognizance  not  fm-f died.  Bus.  426. 

Sect.  8.  Znspiracy  to  cheat,  Bus.  40  ;com,mlted  in  uu-el,  10  Ire.  369  ;  former  pro- 
ceedinns,  3  Ire.  32  ;  commencement  ofprosecutum,  6  Iro.  441^ 

Sect.  14.  1  Ire.  378  ;  2  Dev.  452  ;  1  Oev.  13,  ;  3  JIur.  ,. 

Sect.  28.  3  ire.  116. 

Sfct  32'  P^^act'ice.  10  Ire.  4M,  2  P.  &  B.  196.  Stale  mny  admit  chalknge,  10  Ire. 
395.'    liVicn  several  defendants,  2  Ire.  402.     lnfm-(jery,  2  1).  &  B.  346. 


Chap.  36.] 


237 


CHAPTER    36, 


CURRENCY. 


Section 

1.  Currency  of  United  States,  carrency 

of  the  State:  public  accounts  kept 
in  it. 

2.  Banks  not  to  draw  checks,  &c.,  paya- 

ble otherwise  than  in  specie. 

3.  Not  to  issue  bills,  or  certificates  of  de- 

posit, &c.,  for  less  than  three  dollars. 
Penalty. 

4.  Corporations  not  to  issue  such  certifi- 

cates, nor  any  kind,  for  circulation. 
Penalty. 

5.  Issue  of  due  bills,  notes,  and  all  kinds 

of  circulation  forbidden,  unless  ex- 
pressly allowed.    Misdemeanor. 


Section 

6.  Such  due  bills,  notes,  &c.,  forbidden 

to  be  circulated  under  pain  of  mis- 
demeanor. 

7.  Public  treasurer  not  to  receive  for  tax, 

bills  of  banks  issumg  for  less  than 
three  dollars. 

8.  Specie  required  by  charter  to  be  bona 

fide  paid  in,  previous  to  banking. 
Certified  by  president  and  cashier. 
Certificate  deposited  with  governor. 
Penalty  for  failure  to  deposit  certifi- 
cate. 

9.  Penalty  for  issuing  false  certificate. 


1.  The  currency  of  the  United  States  shall  be  the  lawful 
currency  of  this  State,  and  all  records,  fee  bills  of  officers,  offi- 
cial accounts,  accounts  for  moneys  collected  by  officers,  ac- 
counts required  to  be  returned  to  court,  and  all  other  proceed- 
ings and  papers  of  a  public  nature  shall  be  kept  in  dollars  and 
cents. 

2.  If  any  bank  shall  issue  any  bill,  note,  check,  or  draft,  re- 
deemable or  payable  in  any  other  manner  than  by  payment  in 
specie,  the  same  shall  be  deemed  to  be  due  and  demandable 
in  specie  at  the  place  where  it  was  issued ;  and  on  demand 
and  refusal  to  pay  the  same,  the  money  therein  expressed  shall 
draw  interest,  till  paid,  at  the  rate  of  twelve  per  cent,  per  annum. 

3.  No  bank,  unless  plainly  and  expressly  allowed  by  its 
charter,  shall  make  or  issue  any  note,  bill,  check,  draft,  order, 
acknowledgment  of  indebtedness,  or  certificate  of  deposit,  for 
a  less  sum  than  three  dollars,  on  pain  of  being  deemed  to  have 
violated  its  charter ;  and,  moreover,  of  forfeiting  and  paying 
for  each  offence  the  sum  of  fifty  dollars. 

4.  No  corporation  whatever,  which  is  allowed  to  receive 
money  on  deposit,  shall  make,  issue,  or  deliver  any  certificate, 
or  acknowledgment  of  deposit  for  a  less  sum  than  three  dol- 
lars ;  nor  shall  make,  issue,  or  deliver  any  such  certificate  or 
acknowledgment  of  indebtedness  for  any  sum  whatever,  with 
the  intent  that  the  same  shall  be  circulated  as  money,  on  pain 
of  being  deemed  in  either  case  to  have  violated  its  charter; 
and,  moreover,  of  forfeiting  and  paying  for  each  offence  the 
sum  of  fifty  dollars. 

5.  No  person  or  corporation,  unless  the  same  be  expressly 
allowed  by  law,  shall  issue  any  bill,  due  bill,  order,  ticket,  cer- 
tificate of  deposit,  promissory  note,  or  obligation,  or  any  other 
kind  of  security  whatever  may  be  its  form  or  name,  with  the 
intent  that  the  same  shall  circulate  or  pass  as  the  representa- 


Currency  of  U. 
.States,  curren- 
cy of  State. 
Public  aco'nts 
kept  in  it.— K. 
S.  c.  36;  R.S. 
c.  105,s.  40. 


Banks  not  to 
draw  checks, 
&c.,  payable 
otherwise  than 
in  specie. 


Not  to  issue 
bills  or  certifi- 
cates of  depos- 
it, &c.,  for  less 
than  three  dol- 
lars. 
Penalty. 

Corporations 
not  to  issue 
such  certifi- 
cates, nor  any 
kind  for  cu'cu- 
lation. 


Penalty. 


I^suc  of  due 
bills,  notes,  and 
all  kinds  of  cir- 
culation forbid- 
den, unless  ex- 
pressly allow- 
ed. 


238  CURRENCY.  [Chap.  36. 

tive  of,  or  as  a  substitute  for,  money,  on  pain  of  forfeiting  and 
paying  for  each  offence  the  sum  of  fifty  dollars ;  and  if  the 
party  offending  be  a  corporation,  of  also  being  deemed  to  have 
violated  its  charter.  And  every  person  oflending  agamst  this 
section,  or  aiding  or  assisting  therein,  shall  lilvewise  be  deem- 
jiisdemeanor.    ^^  ^^  ^  misdemeanor. 

Such  due  bills,      6.    N6  person  or  corporation  shall  pass  or  receive,  as  the  rep- 
notes,  &c   not  ^.^g^i^^^^j^g  of,  or  as  the  substitute  for,  money,  any  such  bill, 
Id  under  para  check,  certificate,  promissory  note,    or   other    security   of  the 
of  misdem'r.     y^^^  mentioned  in  this  chapter,  whether  the  same  were  issued 
within  or  without  the  State.     And  any  person  or  corporation, 
and  the  officers  and  agents  of  such  corporation  aiding  there- 
in, who  shall  off'end  against  this  section,  shall  for  every  such 
oftence  forfeit  and  pay  five   dollars,  and  shaU,  moreover,  be 
deemed  guilty  of  a  misdemeanor. 
Tr'rnottotake      7.    The  public  treasurer  is  hereby  directed  not  to  receive  in 
for  tax,  bills  of        j^g„t  ^f  public  taxes,  the  notes  of  any  bank  in   the  tetate 
t'tVthanls.  that  issues  bills  of  a  denomination  less  than  three  dollars. 
—1854,  Res.  g     Whenever  any  bank  charter,  passed  at  the   present  ses- 

erbyX*Jter  sion  of  the  General  Assembly,  (1854,)  or  the  capital  of  which 
tobeJon«>7e   j^^^  ^^^^  increased  at  this  session,  or  any  such   charter  whicli 
^stoKkTug.  may  hereafter  be  passed  in  this  State,  shall  require  a  certain 
Certified  by      amount  of  specie  to  be  paid  in  before  such  bank  shall  go  into 
Sf "      operation,  in  order  the  more  effectually  to   secure  a   compli- 
ance with  the  terms  of  the  charter,  the   president  and  cas  uer 
of  every  such  bank  shall  certify  in  writing,  under  the  seal  ot 
the  corporation,  that  the  amount  of  specie  required  to  be  paid 
in  by  the  charter,  has  been  actually  and  bona  fide  paid  in,  to  be 
there  used  as  a  basis  for  banking  operations  ;  and  shall  deposit 
Certificate  de-  the  said  certificate  with  the  governor,  to  be  kept  in  the  ar- 
positedwith     ^Y\\ves,  of  the  executive   office;  and  in  case  the  president  and 
goveruoi.         ^^^^^.^^  ^^^^^^  ^^^^^^^^  ^^  ^^^^^^^^  ^^  ,^^^.^j^^  provided,  to  Sign  and 

deposit  such  certificate,  then  they  and  each  one  of  the  direc- 
tors of  the  bank,  shall  be  liable  to  indictment  for  a  misde- 
„  ,,  ,  meanor,  in  the  superior  court  of  the  county  where  such  bank 
fol&'de-  is  located  ;  and  on  conviction,  shall  be  fined  in  a  sum  not  less 
posit^ertifi-  ^j^j^,^  Qj^g  thousand,  nor  more  than  three  thousand  dollars,  at 
4',''s'^'i.       '    '  the  discretion  of  the  court. 

Penalty  for  is-       9.    After  signing  and  depositing  such  certificate,  if  it  shall 

suing  false  cer-  appear  that  the  same  does  not  speak  the  truth  in  the  premises, 

tiiicate.-i854,  ,^1^^  ^,^^^  ^,^^  amount  of  specie  required  to  be  paid  in,  has  not 

■   '  ■  ■  actually  and  bom  fide  been  paid  in,  for  the  purpose  aforesaid, 

then,  and  in  that  case,  the  president,  cashier,  and  each  ot  the 

directors  of  the  bank,  shall  be  indictable  for  a  misdemeanor, 

in  the  superior  court  of  the  county  wherein  the  bank  is  located  ; 

and  each  one  on  conviction,  shall  be  fined  in  a  sum   not  less 

than  one  thousand,  nor  more  than  three  thousand  dollars,  and 

imprisoned  for  a  term  of  not  more  than  three  months,  at  the 

discretion  of  the  court. 

Skot.  6.  2  D.  &  B.  555. 


Chap.  37.]  deeds  and  conveyances. 


239 


CHAPTER    37. 


DEEDS   AND    CONVEYANCES. 


Section 

1.  Deeds  proved  and  registered  in  coun- 

ty where  land  lies  within  two  years, 
good  without  livery,  &c. 

2.  Before  whom  deeds,  bills  of  sale,  pow- 

ers of  attorney,  proved. 

3.  When  grantor  or  subscribing  witness 

out  of  State,  proved  before  commis- 
sioner appointed  by  court. 

4.  Commission  to  issue  under  seal.    Pro- 

bate and  privy  examination  oP  feme 
covert  taken  and  certified.  Deeds 
registered  on  return  of  certificate. 

5.  Probate  of  deeds,  &c.,  within  United 

States,  including  deeds  of  feme  co- 
vert, before  a  judge.     How  certified. 

6.  Deeds  made  in  foreign  countries,  how 

proved  and  registered. 

7.  Further  provisions  for  probate  of  such 

deeds,  before  ambassadors,  &c. 

8.  Deeds    of   husband    and    wife,   how 

proved.    Wife  privately  examined. 

9.  Provision  when  wife  is  sick,  or  resi- 

dent of  another  country  or  county. 

10.  Form  of  commission  to  take  private 

examination  of  feme  covert, 

11.  Conveyance  under  power  of  attorney 

from  husband  and  wife  to  pass  lands. 

12.  Another   mode   when    husband    and 

wife  reside  in  foreign  parts. 
18.  Powers   of  attorney   by  fetne  covert 
proved  .and  registered  as  deeds. 

14.  Powers   of  attorney,  how  proved  in 

State.     How  proved  out  of  State. 

15.  Deeds,  ijcc,  how  proved  when  attest- 

ing witness  dead. 


Section 

16.  Copies  of  registered  deeds  evidence, 

unless  by  rule  original  is  required. 

17.  Gifts  of  slaves  proved  and  registered. 

18.  Deeds  of  gift  also. 

19.  Sales  of  slaves  in  writing  also. 

26.  Registered  where  purchaser  resides, 
unless  vendor  retains  possession,  Sic. 

21.  Estates  in  slaves  limitable  by  deed, 

&c.,  as  by  will. 

22.  Mortgage  and  trust  deeds  good  against 

creditors,  &c.,  only  from  registration. 
Where  registered. 

23.  Register  to  indorse  day  of  delivery,  and 

register  in  order.    Penalty  for  failure. 

24.  JIarriage  settlements  registered,  oth- 

erwise void  as  to  creditors. 

25.  What     marriage     settlements     good 

against  creditors.  How  deficiency 
in  property  settled,  made  up. 

26.  Contracts  to  sell  lands,  and  leases,  re- 

quired to  be  in  writing,  must  be  reg- 
istered. 

27.  Infont  tnistees,  how  to  convey. 

28.  Errors  in  registration  of  deeds,  &:c., 

how  corrected.    Appeal  allowed. 

29.  Deeds  registered  in  wrong  county  be- 

fore 1830,  or  certified  copies  thereof, 
may  be  registered  in  proper  county, 
when. 

30.  Deeds  how  made  when  sheriff,  &c., 

who  sells,  goes  out  of  office,  dies,  or 
removes  away. 

31.  Witnesses  to  deeds  may  be  summoned 

to  prove  them. 

32.  Further  time  allowed  for  registering 

deeds,  &c. 


1.  No  conveyance  for  land  shall  be  good  and  available  in  Deeds  proved 
law,  unless  the  same  shall  be  acknowledo;ed  by  the  f^rantor.  or  ?-"'^  registered 

J  III  ,  o  v"  o  *         in  CO  where 

proved  on  oath  by  one  or  more  witnesses  in  the  manner  here-  laud  lies,  with- 
inafter  directed,  and  registered  in  the  county  where  the  land  "ood  v'Yio"' 
shall  lie,  within  two  years  after  the  date  of  the  said  deed  ;  and  hveryT&c?- 
all  deeds  so  executed  and  registered  shall  be  valid,  and  pass ''•^- "•■''' ^- ^■ 
estates  in  land,  without  livery  of  seizin,  attornment,  or  other 
ceremony  whatever. 

2.  All   deeds,   bills  of  sale,  powers  of  attorney,  and  other  Before  whom, 
instruments  of  writing  required  or  allowed  to  be   registered,  ?.^f(.''*'>o''wer3°'^ 
may  be  admitted  to  registration   in  the   proper  county,  upon  .■aVy  inwe".— 
being  acknowledged  by  the  grantor,  or  proved  on  oath  before  J'^  as-i'biti^' 


240  DEEDS   AND    CONVEYANCES.  [ChAP.    37. 

c.  68, s.  3;  1852,  one  of  the  judges  of  the  supreme  or  superior  court,  or  in  the 
<=•  "3-  county  court  of  the  county  where  the  land  or  estate  is  situate, 

unless  otherwise  directed,  or  before  the  clerk  of  such  court,  or 
his  deputy.     Provided,  that  nothing  herein  contained  shall  be 
construed  to  allow  the  privy  examination  of  fanes  covert  to  be 
taken  otherwise,  than  by  law  is  specially  directed. 
When  grantor        3     AH  deeds  for  land   or  other   estate   situate  within  the 
"itne'!.'s"^t'o!-   state,  and  powers  of  attorney  to  convey  the  same  ;  all  bills  of 
State,  proved    sale,  and  all  other  instruments  of  writing  requn-ed  or  allowed 
wo^itTby    to  be  registered,  wherever  such  deeds,  powers  of  attorney,  bills 
comt.-R.  s.  c.  of  sale,  or  other  instruments  of  writing  may  have  been  exe- 
37,s.4,8.        ^^^^p^,^  whether  within  or  without  the   State,  if  the  grantor  or 
subscribing  witness  shall  reside,  or  be,  beyond  the  limits  of  the 
State,  when  it  may  be  desired  to  liave  the  same  registered, 
may  be  acknowledged  by  the  grantor,  or  proved  by  the  wit- 
nesses, before   a  commissioner  or    commissioners   to    be    ap- 
pointed   by    the  court  of    pleas    and  quarter-sessions  of  the 
county  wherein  the  same  are  to  be  registered. 
Commission  to      4.    When   any   person  shall  desire  to   have  registered  any 
issue  under       gygh  deed  or  other  writing  as  is  mentioned  m  the  preceding  sec- 
'^*''  tion,  the  court  of  pleas  and  quarter-sessions  aforesaid  may  issue 

'    a  commission  under  the  seal  of  such  court,  (returnable  to  some 
subsequent  term  thereof.)  to  a  commissioner  or  commissioners, 
authorizing  any  one  or  more  of  them  to  take  the  acknowledg- 
ment of  the  parties,  or  the  examination  of  any  one  of  the  sub- 
scribing witnesses  thereto,  or  other  due   proof  thereof;    and 
Probate  and      also  the  examination  of  any  feme  covert  party  to  the  same ; 
of"/VmTcr«-i°  and  the  proceedings  of  the  commissioners,  so  authorized,  being 
taken  and  cer-  returned  to  the  court,  the  court  may  proceed  to  adjudge  that 
^'^^'"^-  such  deed  or  other  instrument  of  writing  is  duly  acknowledged 

or  proved,  and  that  the  said  examination  is  in  due  form:  and 
Deeds  register-  thereupon  the  same,  with  the  said  proceedings,  shall  be  regis- 
certifieale.-  tered  ;  and  such  registration  shall  have  the  same  effect  as  if  the 
R.  S.  c.  3T,  s.    proceedings  had  been  in  open  court. 

Probate  of  5.    When  any  deed  conveying  lands  in  this  State,  or  power 

deeds,  &c.,       of  attorney  for  the  conveyance  of  the  same,  or   any  bill  of 
Sdi.!^'deeds  sale  for  slaves,  or  other  instrument  whatever  required  or  al- 
offemem'ert,  jowcd  to  be  registered,  shall  have  been  executed  by  any  per- 
beforeajudge.  ^^^^^  ^^^^^  .^  ^^^^^  ^^  desired  to  take  the  probate  or  acknowledg- 
ment thereof  out  of  this  State,  but  Avithin  the  United  States, 
and  the  same  shall  be  personally  acknowledged  by  the  person 
executing  the  same,   or  be   proved   by   a  subscribing  witness 
thereto,  or  duly  proved  in  any  other  manner,  before  some  one 
of  the  judges  of  supreme  jurisdiction,  or  a  judge  of  the  courts 
of  law  of  superior  jurisdiction  within  the   State,  territory,  or 
district  where  the  parties  may  be,  —  and  if  any  of  the  ])artics 
shall  be  a  ferne  covert  and  she   shall   be  privily  examined  by 
such  judge,  whether  she  doth  voluntarily  assent  thereto,  —  and 
an  attestation  of   such  acknowledgment  or  probate    and   cx- 
liow  certified,  amination  shall  be  indorsed  or  allixed  to  such  deed  or  other 
"^'  instrument  by  the  judge,  and  a  certificate  of  the  governor  of 


—  K. 


Chap.  37.]  deeds  and  conveyances.  241 

the  State  or  territory,  or  (where  the  probate  or  acknowledo-- 
ment  and  examination  shall  be  in  the  district  of  Columbia)  of 
the  secretary  of  State  of  the  United  States,  shall  be  annexed 
to  such  deed  or  other  instrument,  that  the  judge,  before  whom 
the  acknowledgment  or  probate  and  examination  was  taken, 
was,  at  the  time  of  taking  the  same,  one  of  the  judges  of 
the  courts  of  superior  jurisdiction  within  said  State,  territory, 
or  district:  Or  when  such  deed,  power  of  attorney,  bill  of 
sale  of  slaves,  or  other  instrument  as  aforesaid  shall  be  so  ac- 
knowledged or  proved,  and  the  privy  examination  taken  as 
aforesaid,  before  any  commissioners  aJDpointed  by  the  governor 
of  this  State,  according  to  law,  and  duly  certified  by  him, 
such  deed,  power  of  attorney,  bill  of  sale,  or  other  instrument,' 
being  exhibited  in  the  court  of  pleas  and  quarter-sessions  of 
the  county  where  the  property  is  situate,  or  to  one  of  the  judges 
of  the  supreme  court  or  of  the  superior  courts  of  this  State, 
shall  be  ordered  to  be  registered  with  the  certificates  thereto 
annexed;  and  the  same  being  registered  in  the  county  wherein 
the  property  may  be  situate,  pursuant  to  such  order ;  or,  in 
the  case  of  slaves,  in  the  county  as  by  this  chapter  is  directed, 
shall  be  valid  in  law  for  the  purpose  intended  thereby,  and 
shall  be  received  in  evidence  in  any  court  without  further 
proof. 

6.  All  deeds,  bills  of  sale,  and  other  instruments  of  writing  Deeds  made  in 
made  m  parts  beyond  the  limits  of  the  United  States,  required  ["•'""'§?  ""'^i'- 
or  allowed  to  be  registered  in  this  State,  which  shall  be  remit-  proverand 
ted  hither,  and  duly  proved  in  the    State,  or  which  shall  be  Jf^""=''f;- 
personally  acknowledged  or  proved  before  the  chief  magistrate  ''•''■ '^- '^^''•''• 
of  any  city  in  the  country,  in  which   such  deed,  bill  of  sale, 

or  other  instrument  was  executed,  and  an  attestation  thereof 
under  the  corporate  seal  affixed  thereto,  shall,  upon  being  ex- 
hibited to  the  court  of  pleas  and  quarter-sessions  of  the  praper 
county,  or  to  one  of  the  judges  of  the  supreme  or  superior 
courts  of  the  State,  be  ordered  to  be,  and  shall  be  registered  • 
and  when  registered,  shall  be  good  and  valid  in  law  to  all  in- 
tents and  purposes,  and  shall  be  received  in  evidence  without 
further  proof. 

7.  Whenever  a  deed,  bill  of  sale,  or  other  insti-ument  of  F"'-*'-"  pro- 
writing  which  is  authorized  to   be  registered,  shall  be  proved  b.ueof  ^ch™" 
or  acknowledged  in  foreign  parts  before  any  ambassador,  pub-  ''ps'i^  '«fore 
he  minister,  consul,  or  commercial  agent  of  the  United  States,  &c''-R''n 
and  his  certificate  shall  be  thereunto  annexed,  under  his  offi- 37,s.  7. '  ■"■ "" 
cial  seal,  declaring  such  probate  or  acknowledgment ;  or  when 

any /ewe  covert,  party  to  such  deed  or  other  instrument  of 
writing,  shall  be  privately  examined  before  such  ambassador, 
public  minister,  consul,  or  commercial  agent,  and  a  certificate 
of  such  examination  shall  be  annexed  as  aforesaid,  such  pro- 
bate, acknowledgment,  and  examination  being  produced  before 
the  court  of  pleas  and  quarter-sessions  of  the  county  wherein 
the  land  or  other  property  is  situated,  may  be  ordered  by  the 
court  to  be  registered,  together  with  the  said  deed,  bill  of' sale, 
21 


242  DEEDS   AND    CO.\\-EYANCES.  [ChAP.    37. 

or  Other  instrument;  and  the  deed  or  instrument  so  registered 
shaU  have  the  same  validity,  as  if  the  probate,  acknowledg- 
ment, and  examination  had  been  had  in  open  court. 
Doeasofhus-        8.    All  conveyances  in  writing  and  sealed  by  h^«>^^»J^^J 
b.ndaudwife      if    for  lands,  and  duly  proved,  or  by  them  personally 

t^rX^e^y  acknowledged  before  one  of  the  judges  of  the  ^»P-"'"«^  o;-"^" 
eKami!;ed.-R.        ■       ^^^^^^    or  in   the  covut  of  the  county  where  the  land 
'■"■''''■'■     Ueth,  the  wife  being  first  privily  examined  before  said  judge 
or  some  member  of  the  county  court,  appomted  by  the  court 
for  that  purpose,  whether  she  doth  voluntardy  assent  thereto 
and  duly  registered,  shall  be  valid  m  law  to  convey  all  the 
estate,  right  and  title  which  such  wife  may  have  m  the  said 
lands,  tenements,  and  hereditaments. 
r,ovi.ion.hen      9.    Provided,  nevertheless,  that  where  any  such  ^""y';^'^"^^ 
wife  is  sick  or        aforesaid  shall  be  acknowledged  by  the  husband,  m  pimed 
X'>-«Srby  the  oath  of  one  or  more  vyitnesses  before  '^  jf  S^  as  aforc- 
r'"'?-,^n    said  or  county  court  where  the  land  lieth,  and  it  shall  be  rep- 
'■'■''''■''■  resented  to  the  judge  or  county  court,  that  t'lc  -ife  is  a  res  - 
dent  of  any  other  country  or  county,  or  so  aged  or  iit  urn  that 
she  cannot  travel  to  the  said  judge  or  county  court  to  make 
such  acknowledgment  as  aforesaid,  the  judge  or  county  com 
may  direct  the  clerk   of  the   county  court  where  such   land 
lieth,  to  issue  a  commission  to  two  or  more  commissioners  lor 
recei^ving  the  acknowledgment  of  the  deed  of  ,uch  Jeme  covert 
for  passhig  her  estate  in  any  lands,  tenements,  or  heredita- 
meiSs;  an"d  such  deed,  acknowledged  before  them,  alter  they 
have  examined  her  privily  and  apart  from  her  husband  touch- 
ing her  consent,  and  certified  to  the  county  court,  to  which 
the  commission  shall  be  returnable,  shall,  by  order  of   he  court 
be  registered  with  the  commission  and  returns,  and  shall  be  as 
eftectual  as  if   personally  acknowledged  before  the  judge  or 
county  court  by  such  feme  covert. 
Form  of  com-       10.    The  clerk  of  the   court  of  pleas   and  quarter-sessions 
mission  to  take    ,    ,.  .  -j  commission  in  the  followmg  form,  namely,— 

FnTon  IfZ^e  The  State  of  North  Carolina. 

covert.--b.S.  rn     x    and  B.  —  Greeting :  , 

"       °  Whereas,  F.  G.  hath  produced  a  deed  of  conveyance  made 

to  him  from  H.  I.  and  K.  his  wife,  of  a  certain  tract  or  par- 
cel of  land,  lying  and  being  in  the  county  of  m  our 
State  and  procured  the  same  to  be  proved  (or  acknowledged 
by  th^  said^I.  I.)  before  J.  L.,  one  of  the  judges  ot  our  su- 
preme court,  (or  superior  court,  or  in  the  court  of  our  sa  d 
county  of  C.  as  the  case  may  be,  and  it  being  represented  to 
our  said  judge  (or  to  our  said  court)  that  K.,  wife  "f  i^^^  ^a,d 
H.  I.,  is  not  an  inhabitant  of  the  county,  (or  ot  our  State,  or  is 
so  aged  and  infirm  that  she  cannot  travel  to  our  said  judge,  or 
court  of  our  said  county  of  ,  to  be  privily  «^;""'-  ^  ^^ 
to  her  free  consent  in  executh.g  the  said  ^^''''"rf'^f-J'^^^ 
ve,  that  we,  in  confidence  of  your  prudence  and  fidelity,  have 
appointed  you,  and  by  these  presents  do  give  unto  you,  or  to 
any  two  of  you,  full  power  and  authority  to  take  the  private 


.  37,  s.  11. 


Chap.  37.]  deeds  and  convey ai>-ces.  243 

examination  of  the  said  K.,  wife  of  the  said  H.  I.,  concerning 
her  free  consent  in  her  executing  the  said  conveyance,  and 
therefore  we  command  you,  or  any  two  of  you,  that,  at  such 
certain  day  and  place  as  you  shall  think  lit,  you  go  to  the  said 
K.,  if  she  cannot  conveniently  come  to  you,  and  privily,  and 
apart  from  her  husband,  examine  her  whether  she  executed 
the  said  conveyance  freely  and  of  her  own  accord,  without 
fear  or  compulsion  of  her  husband  ;  the  examination  being 
distinctly  and  plainly  written  on  the  said  deed,  or  on  some 
paper  annexed  thereto.  And  when  you  shall  have  so  taken 
the  examination,  you  are  to  send  the  same,  closed  up,  under 
the  seals  of  you,  or  any  two  of  you,  together  with  this  writ, 
unto  our  said  court,  to  be  held  for  the  said  county  at 
on   the         day   of  next    ensuing.      Witness    M.,   clerk 

of  our  said  court,  at  office,  the         day  of  A.  D. 

11.  All  conveyances,  which  may  be  made  by  any  person.  Conveyance 
under  a  power  of  attorney  from  any  /ewe  covert  by  her  freely  ""der  power  of 
executed  jointly  with  her  husband,  shall  be  valid  to  all  intents  banianTwife" 
and  purposes,  to  pass  the  estate,  right  and  title  which  such  ^^"f  '"S-'^", 
feme  covert  may  have  in  such  lands,  tenements,  and  heredita- 12.  '  '  ' '" 
ments  within  this  State,  as  are  mentioned  or  included  in  such 

power  of  attorney. 

12.  Any  deed  for  the  conveyance  of,  or  power  of  attorney  Another  mode 
to  convey,  lands  in  this  State,  made  by  husband  and  wife,  who  j|_''Jj,'^".;}.™^^"",^ 
may  be  without  the  limits  of  the  United  States,  which  shall  in  foreign  parts. 
be  personally  acknowledged  before  the  mayor  or  other  chief  ~^-  ^-  ''^  ^^'  '• 
magistrate  of  any  city,  tTie  wife  being  first  privily  examined 

by  such  mayor  or  chief  magistrate,  whether  she  doth  volunta- 
rily assent  thereto,  and  an  attestation  thereof  indorsed  thereon 
or  aflixed  thereto,  under  his  official  seal,  shall,  upon  being  ex- 
hibited to  the  court  of  pleas  and  quarter-sessions  of  the  coun- 
ty where  such  land  lies,  or  one  of  the  judges  of  the  supreme 
court  or  the  superior  courts  of  this  State,  be  ordered  to  be  reg- 
istered, and  shall  be  registered,  in  the  same  manner  as  if  such 
deed  or  power  had  been  proved  or  acknowledged  in  open  court 
of  the  county  where  the  lands  lie,  and  shall  be  valid  in  law  to 
pass  the  estate,  right  and  title  of  the  wife  to  all  such  lands, 
tenements,  or  hereditaments  so  conveyed  or  to  be  conveyed, 
and  when  registered  shall  be  received  in  evidence  without 
farther  proof. 

13.  All  powers  of  attorney  made  by  any  feme  covert  resid-  Powers  of  atfy 
ing  in  this  State  jointly  with  her  husband  for  the  conveyance  ^j/com-e7m^ 
of  any  estate,  right,  or  interest  in  lands  situate  in  this   State,  proved  and  rig- 
shall  be  acknowledged  or  proved,  and  she  shall  be  privily  ex-  Jfeelis''  "^ 
amined  thereto  in  the  same  manner  as  is  prescribed  for  deeds 

of  conveyance  of  her  lands,  and  such  powers  of  attorney  with 
the  certificates  shall  be  registered  in  like  manner  and  place. 

14.  Every  power  of  attorney,  wherever  made,  or  concerning  powci-s  of  at- 
whatsoever  matter,  may  be  registered  on  acknowledgment  or  to™<'y..  i";^ 
probate  of  the  same  in  the  county  wherein  the  property  or  es- '"°"' '" 
tate  may  be  situate,  if  it  concern  the  conveyance  thereof ;  and 

if  the  same  do  not  concern  the  conveyance  of  any  estate  or 


244  DEEDS   AND    CONVEYANCES.  [ChaP.    37. 

property,  then  in   the  county  where  the   attorney  may  reside, 
or  the  business  is  to  be  transacted.     And  such  powers  of  attor- 
ney as  do  not  concern  the  conveyance  of  land  by  a/twe  covert, 
How  proved      thereof  it  may  be  necessary  to  take  the  acknowledgment  or 
out  of  State.—  probate  out  of  the    State,  may,  besides  the   other  modes  pro- 
?6.— mercies,  "^'i^ed  in  this   chapter,  be  acknowledged  or  proved   before  any 
s.  2, 3.     '       '  mayor,  or  presiding  magistrate  of  any  city,  or  a  clerk  of  a  court 
of  record ;  and  such  acknowledgment  or  probate  being  duly 
taken  and  certified    under  the  seal  of  ofKce   of  such   officer, 
shall,  on  the  same   being  produced  to  the  court  of  pleas  and 
quarter-sessions  of  the  proper  county,  be  ordered  by  the  court 
to  be  registered,  and  shall  be  registered. 
Deeds,  &o.,  \o.    In  all  cases  of  the  probate  of  any  deed  or  other  instru- 

■wheifsubscrib-  |nent,  required  or  allowed  to  be  registered,  having  a  subscrib- 
d"i<r— R^s      '"?  witness  who  may  be  dead,  satisfactory  proof  of  his  hand- 
37,  s.' 4.  '   '"'  "writing,  or  of  the  handwriting  of  the  gi-antor  or  maker,  when 
there   is    no  subscribing   witness,  shall  be   deemed    sufficient 
proof  for  the  purpose  of  allowing  the  registration  thereof. 
Copies  of  reg-       16.    The  registry  or  duly  certified  copy  of  the  record  of  any 
evideuctrun-    ^^^^^  power  of  attorney,  or  other  instrument  required  or  allow- 
less  by  rule  of   ed  to  be  registered  or  recorded,  may  be  given  in  evidence  in 
required^"'''    ^"y  ^ourt,  and  shall  be  held  to  be  full  and  sufficient  evidence 
1846,0.68,6.1.  of  such  deed,  power  of  attorney,  or  other  instrument,  although 
the  party  offering  the  same  shall  be  entitled  to  the  possession 
of  the  original,  and  shall  not  account  for  the  non-production 
thereof;  unless  by  a  rule  or  order  of  the  court,  made  upon  af- 
fidavit suggesting  some  material  variance  from   the  original 
in  such  registry,  or  other  sufficient  grounds,  such  party  shall 
have  been    previously   required    to    produce    the    original;  in 
which  case  the  same  shall  be  produced,  or  its  absence  duly 
accounted  for   according  to   the    course    and   practice  of  the 
court. 
Gifts  of  slaves       17.    No  gift  of  any  slave  shall  be  valid,  unless  the  writing 
l^d^regtsTered.  ^y  ^^^hich  the  title  to  such  slave  is  transferred,  shall  be  proved 
— E. S.'c.ST.s.  or  acknowledged,  as   conveyances   of  land,   and  registered  in 
■"^"  the  county  where  the  donee  resides,  within  two  years  after 

the  execution  thereof,  if  the  donee  be  in  actual  possession  of 
the  slave  ;  but  if,  under  any  special  agreement  made  at  the 
time  of  the  gift,  the  donor  shall  remain  in  possession  of  the 
slave,  then  the  writing  shall  be  proved  or  acknowledged  as 
aforesaid,  and  registered  within  the  same  time,  in  the  county 
where  the  donor  resides. 
Deeds  of  gift  18.  All  deeds  of  gift  of  any  estate  of  whatever  nature  shall, 
sr^sTi^.'  ^'  "■    'wi^^^'i'"  two  years  after  the  making  thereof,  be  proved  in  due 

form  and  registered,  or  otherwise  shall  be  void. 
Sales  of  slaves!        19.    All  Written  sales  and  conveyances  of  slaves   shall,  with- 

provedam/reg- '"  ^'^^'^  y^*^*"®  ^^^'^^  ^'^"^  making  thereof,  be  proved  in  due  form 
istered.'— R.      and  registered,  or  otherwise  shall  be  void. 

S.  0.37, 6. 19.  20.  When  tlie  transfer  or  conveyance  of  any  slave  shall  be 
whc'reTtireha- ^"  Writing,  sucii  writing,  after  being  duly  acknowledged,  or 
ser  resides,  uu- proved,  shall  be  registered  in  the  county  where  tiie  purchaser 


Chap.  37.]  deeds  and  conveyances.  245 

(he  being  in   actual  possession  of  the  slave)  shall  reside  ;  but  less  vendor  re- 
if,  under  any  special  agreement  at  the  time  of  the  sale,  the  'ioU^lc!— R. 
vendor  shall  remain  in  possession  of  the  slave,  then  the  writing  S.  c.  37,  s.  20. 
shall  be  registered  in  the  county  where  the  vendor  may  reside. 

21.  Every  Idnd  of  estate  in   slaves,  be  the  same  vested  or  Estates  in 
contingent,  or  for  life,  or  for  years,  which  is  allowed  to  be  by ^deed" &<■.,'' 
created  and  limited  by  any  last  will  or  testament,  may  be  ere- as  by  will— r. 
ated  and  limited  by  way  of  reservation,  remainder,  reversion,    '"'     '^' 

or  otherwise,  by  any  written  conveyance  of  slaves. 

22.  No  deed  of  trust  or  mortgage,  for  real  or  personal  estate,  ^'"'"?^V'^"'' 
shall  be  valid  at  law  to  pass  any  property,  as  against  creditors  good  against 
or  purchasers  for  a   valuable   consideration,  from   the  donor,  creditors,  &c., 

1  •  ,  1      ,    r  ,1  •    .       2  •  £•  111  only  fi'o™  rsi?- 

bargamor,  or  mortgagor,  but  irom  the  registration  ol  such  deed  istration. 
of  trust  or  mortsjasre  in  the  county  where  the  land  lieth ;  or.  in  Where  regis- 

iD    <D  J  ^  '         '         tcved. K.  fa.  c. 

case  of  personal  estate,  where  the  donor,  bargainor,  or  mortga-  37,  s.  24. 
gor  resides ;  or  in  case  the  donor,  bargainor,  or  mortgagor,  shall 
reside  out  of  the  State,  then  in  the  county  where  the  said  per- 
sonal estate,  or  some  part  of  the  same  is  situate,  or  in  case  of 
choses  in  action,  where  the  donee,  bargainee,  or  mortgagee 
resides. 

23.  The  register  shall  indorse  on  each  deed  of  trust  or  mort-  Register  to  in- 
gage  the  day  on  which  it  is  presented  and  delivered  to  him  for  gagel,  ^cJ^day 
registration,  and  such  indorsement  shall  be  entered  on  the  reg-  of  delivery,  anil 
ister's  books,  and  form  a  part  of  the  registration,  and  he  shall  derof'deUvery. 
immediately  thereafter  register  the  same,  in  the  order  of  time 

in  which  it  was  presented  and  delivered  to  him  ;  and  any  regis-  Penalty  for 
ter,  not  complying  with  the  provisions  and  requisitions  of  this  c?37'^^s.~26.' 
section,  shall  be  liable  in  an  action  on  the  case  to  the  party 
injured,  and  also  to  be  indicted  in  the  superior  court,  and  fined 
at  the  discretion  of  the  court. 

24.  All  marriage  settlements  and  other  marriage  contracts.  Marriage  set- 
whereby  any  money  or  other  estate  shall  be  secured  to   the  te'r'ed'.'other?"" 
wife  or  husband,  shall  be  proved,  or  acknowledged  and  regis-  wise  void  as  to 
tered  in  the  same  manner  as  deeds  for  lands,  within  six  months  g.  c.'sr  'e729. 
after  the  making  thereof,  otherwise  they  shall  be  void  against 
creditors. 

25.  No  marriage  settlement,  or  marriage  contract,  shall  be  What  mar- 
good  against  creditors,  where  a  greater  value  is  secured  to  the  mefts^good" 
intended  wife  and  children  of  the  marriage,  or  either  of  them,  against  cred- 
than  the  portion  actually  received  with  the  wife  in  marriage, 

and  such  estate  as  the  husband,  at  the  time  of  his  marriage, 
shall  be  possessed  of,  after  deducting  the  just  debts  by  him 
then  due  and  owing ;  and  in  case  of  a  suit  upon  any  such 
marriage  contract,  where  a  creditor  shall  be  a  party,  the  burden 
of  the  proof  shall  lie  upon  the  person  claiming  under  such 
marriage  contract.     Provided  alivays,  that  if  any  les^acy  shall  How  deficiency 

,  •    °      .       .,  -r      ■  11  1  J       a      J  in  nropertv  set- 

be  given  to  the  wite  m  general  words,  and  not  in  trust,  or  a  tied,  made  up. 

distributive  share  of  any  intestate's  estate  shall  fall  to  her  dur-  ^^^  ^-  '^-  ^^' 

ing  her  coverture,  and  he  shall  become  entitled  thereto,  such 

legacy  and  distributive  share  (in  case  the  estate  of  the  husband 

and  wife  shall  not  at  the  time  of  the  marriage  be  of  sufHcient 

21* 


246 


Contracts  to 
sell  lands,  and 
leases,  i-equireil 
to  be  inwritinjr, 
must  be  regis- 
tered. 


Infant  trustees, 
how  to  convey. 
— K.  S.  c.  37, 

8.31. 


Errors  in  regis- 
tration of 
deeds,  &c., 
corrected  on 
petition. 


Appeal  al- 
lowed.—R.  S. 
C.  37,  s.  82. 


Deeds  regis- 
tered in  wrong 
county  before 
1830,  or  certi- 
fied copies 
thereof  may  be 
registered  in 
proper  county, 
in  certain 
cases. — R.  S.  c. 
44,  s.  24,  29. 


Deeds,  how 
made  when 
sheriff,  &c., 


DEEDS   AND    CONVEYANCES.  [ChAP.    37. 

value  to  make  good  the  marriage  contract)  shall  be  held, 
deemed,  atid  taken  as  part  of  the  portion  received  with  the 
wife,  and  shall  be  secured  to  those  claiming  under  such  mar- 
riage contract.  ( 

26.  AU'coiTFracts  to  sell  or  convey  any  lands,  tenements,  or 
hereditaments,  or  any  interest  in  or  concerning  them,  and  all 
leases  required  to  be  put  in  writing,  upon  due  proof  or  ac- 
knowledgment thereof  in  the  manner  in  this  chapter  provided 
for  the  conveyance  of  lands,  shall  be  registered  in  the  proper 
county,  within  two  years  from  the  date  of  such  contracts  or 
leases. 

27.  Whenever  any  infant  shall  be  seized  or  possessed  of  any 
estate  whatever  in  trust,  whether  by  way  of  mortgage  or  other- 
wise, for  another  person  who  may  be  entitled  in  a  court  of 
equity  to  have  a  conveyance  of  such  estate,  or  may  be  de- 
clared to  be  so  seized  or  possessed,  in  the  course  of  any  pro- 
ceeding in  such  court,  the  court  may  decree  that  the  infant 
shall  convey  and  assure  such  estate,  in  such  manner  as  it  may 
direct,  to  such  other  person :  and  every  conveyance  and  as- 
surance, made  in  pursuance  of  such  decree,  shall  be  effectual 
in  law  as  if  made  by  a  person  of  full  age. 

28.  Every  person  who  discovers  that  there  is  an  error  in  the 
registration  of  his  grant,  mesne  conveyance,  bill  of  sale,  or  other 
instrument  of  writing,  may  prefer  a  petition  to  the  county  court, 
in  the  same  manner  as  is  directed  for  petitioners  to  correct 
errors  in  grants  or  patents,  and  if,  on  hearing  the  same  before 
a  majority  of  the  justices,  it  appears  that  errors  have  been 
committed,  the  court  shall  order  the  register  of  the  county  to 
correct  such  errors,  and  make  the  record  conformable  to  the 
original.  Provided,  that  such  petitioner  shall  have  notified  his 
grantor,  and  every  person  claiming  title  to,  or  having  lands 
adjoining,  tiiose  mentioned  in  tiie  petition,  thirty  days  previous 
to  preferring  the  same.  And  provided,  also,  that  such  petition 
shall  not  be  set  for  hearing  at  the  first  term,  and  any  person 
dissatisfied  with  the  judgment  may  appeal  to  the  superior 
court,  as  in  other  cases. 

29.  And  because  in  times  past  deeds  for  land  have  been 
registered  in  the  wrong  county,  by  reason  of  the  uncertainty  of 
the  boundaries  of  counties,  whereby  the  title  of  bond  fide 
claimants  may  be  questioned :  For  remedy  whereof,  be  it 
enacted,  that  all  original  deeds,  made  prior  to  the  year  one 
thousand  eight  hundred  and  thirty,  and  registered  before  that 
time  in  a  county  wliere  any  part  of  the  lands  thereby  conveyed 
are  situate,  or  in  any  county  adjoining  thereto ;  or  the  copies 
of  such  deeds,  duly  certified  by  the  register  of  the  county 
wherein  they  shall  have  been  registered,  may,  upon  the  certifi- 
cate of  the  register,  be  registered  in  the  proper  county;  and 
the  registry  or  copy  thereof,  duly  certified  as  in  other  cases, 
shall  be  received  in  evidence. 

30.  Whenever  any  sheriff  or  coroner,  in  virtue  of  his  office, 
sliall  have  sold  any  real  or  personal  estate,  and  shall  go  out  of 


Chap.  37.]  deeds  and  conveyances.  247 

office  before  executing  a  proper  conveyance  therefor,  he  may  who  sells,  goes 
execute  the  .same  after  his  term  of  office  shall  have  expired :  j^es'^or  re"' 
and  whenever  such  officer  shall  die  or  remove  from  tlie   State  moves  away.— 
before  executing  the  same,  his  successor  in  office  shall  execute  ^'^^''^■^'• 
such  conveyance :  and  all  conveyances  thus  executed  shall  be 
as  valid  as  if  made  by  the  sheriff  or  coroner,  who  may  have 
made  the  sale ;    Prodded,  that  nothing  herein  contained  shall 
be  construed  to  allow  the  execution  of  conveyances  of  lauds 
sold  for  taxes,  otherwise  than  is  prescribed  and  provided  in  the 
chapter  entitled  "  Revenue." 

31.  The  OTantee  in  any  deed,  bill  of  sale,  mortgage,  or  other  Witnesses  to 

.       ,  ,  ^  .   .  *^     11        •  f  ■   X     i-  i-   1  •     deeds  mav  be 

instrument,  requirmg  or  allowing  oi  registration,  may,  at  his  gammoned  to 
own  expense,  on  motion  to  the  court  of  pleas  and  quarter-ses-  P^ve  them.— 
sions  of  the  county  where  the  same  is  required  to  be  regis-  ■  '  "  '  '  ' 
tared,  obtain  a  summons  for  any  one  of  the  subscribing  wit- 
nesses to  such  conveyance,  signed  by  the  clerk  and  directed 
to  the  sheriff,  commanding  him  to  summon  such  witness  to 
appear  at  the  next  term  of  said  court,  and  give  his  evidence 
concerning  the  execution  of  the  conveyance  or  other  writing, 
under  the  penalty  of  forty  dollars  ;  and  the  sheritT  shall  execute 
the  same,  at  least  five  days  before  the  term,  to  which  it  is  re- 
turnable, and  make  due  return  thereof;  and  if  any  witness  so 
summoned  shall  fail  to  appear,  the  court  shall  give  judgment 
and  award  execution  against  him  for  the  penalty  aforesaid,  for 
the  use  of  the  party  summoning  him,  in  like  manner  and  under 
the  same  rules  as  are  prescribed  in  the  case  of  other  witnesses 
defaulting. 

32.  All  grants  of  land  in  the  State,  all  deeds  of  conveyance.  Further  time 
all  conveyances  of  slaves,  all  powers  of  attorney,  and  every  isterii^^d'eed?" 
other  instrument  in  writing,  which  is  required  or  allowed  to  be  &c.— isBi. 
registered  within  a  given  time,  and  have  not  been  proved  and 
registered   within  such  time,  may  be  proved  and    registered 

within  two  years  after  the  passage  of  this  chapter,  under  the 
same  rules,  regulations,  and  restrictions  as  heretofore  appoint- 
ed by  law ;  and  when  so  proved  and  registered,  shall  be  as 
good  and  valid  as  if  they  had  been  duly  proved  and  registered. 
Provided,  that  nothing  herein  contained  shall  be  construed  to 
extend  to  mortgages,  and  conveyances  in  trust,  and  to  mar- 
riage settlements. 


Sect.  1.  Wint,  (/eet/s  to  be  registered,  1  Jones,  Eq.  137,  6  Ire.  309.  Oitrer/islered  deed, 
in  equity,  2  Dev.  Eq.  412,  6  Ire.  Eq.  79. 

Sect.  2.   How  proced,  13  Ire.  379,  11  lb.  307,  8  lb.  302.     Deputy  clerk,  13  Ire.  452. 

Sect.  8.  Validitij,  if  irre gidarly  prored,  13  Ii'e.  193,  5  Ire.  Eq.  321.  Fcn-m  of  probate, 
9  Ire.  353,  lb.  312,  lo'lb.  446,  13  iLi.  400,  8  lb.  70.  Deed  fur  separate  estate  of  leife,  4 
Ire.  Eq.  312.  "^ 

Sect.  9.    2  Ire.  Eq.  3S6;  2  Ire.  240;  1  lb.  313;  4  D.  &  B.  51. 

Sect.  15.   11  Ire.  307. 

Sect.  17.  4  Ire.  165;  3  Ire.  Eq.  253;  10  Ire.  245;  2  Dev.  Eq.  535;  2  D.  &  B.  115;  2 
Dev.  240;  3  JIur.  133.     Admneeintnt  when,  5  Ire.  78. 

Sect.  19.  £sto2)pel,  9  Ire.  163.  Attestation,  12  Ire.  211.  Bus.  360.  Sale  and  delieery, 
11  Ire.  502,  4  Pev.  73. 

Sect.  2(1.    Where  registered,  7  Ire.  14. 

Sect.  22.  1  Ire.  97;  2  Ire.  Eq.  495;  1  Ire.  340;  4  D.  &B.  173;  1  Dev.  Eq.  318.  Wi at  is 
a  mortgage,  iff.,  4  Dev.  59,  Bus.  Eq.  181.  When  deemed  rer/istereil,  2  D.  &  B.  79,  4  Dev. 
384,  4  D.  &  B.  173.     Between  the  parties  valid  uithcrut  registration,  Bus.  283. 

Sect.  32.   3  Dev.  378;  3  Hawks,  18. 


248 


DESCENTS. 


[Chap.  38. 


CHAPTER    38, 


DESCENTS. 


Section 
1.  Rules  of  descent. 

Rule  1.  Lineal  descent. 

Rule  2.  Females  to  inherit  \yith  males, 
and  younger  -n-ith  older  children. 
Children  advanced  in  real  or  personal 
estate,  to  account  for  advancements. 

Rule  3.  Lineal  descendants  to  repre- 
sent their  ancestor. 

Rule  4.  Collateral  descent  of  inherit- 
ance, when  derived  from  an  ancestor. 

Rule  5.  When  not  derived  from  an  an- 
cestor,—  or  his  blood  e.Ktinct. 

Rule  6.  Half  blood  to  inherit  with 
whole  blood.  Parent  when  to  in- 
herit from  child. 

Rule  7.  None  to  inherit,  unless  born 


Section 

before,  or  in  ten  lunar  months  after 
ancestor's  death. 

Rule  8.  When  widow  shall  take  .is 
heir.  , 

Rule  9.  Alien  heirs  not  to  prevent 
other  relations,  being  citizens,  from 
inheriting. 

Rule  10.  Illegitimate    children    to  in- 
herit from  their  mother. 
Rule  11.  And  from  each  other.    Legiti- 
mate may  inherit  from  them.     Dy- 
ing without  issue,  mother  to  be  heir. 

Rule  12.  Estates  for  life  not  devised, 
to  be  inheritances. 

Rule  13.  Seizin  deSned. 


Rules  of  de- 
scent. 


Lineal  descent. 
— R.  S.  0.  38, 
s.  1. 


Females  to  in- 
iierit  with 
males,  and 
younger  with 
older  children. 

Children  nrt- 
▼anced  in  real 
or  personal  es- 
tate, to  account 
lor  advance- 
ments.—R.  S. 
c.  38,  Rule  2.— 
1S44,  c.  61,  s. 
1,2. 


1.  When  any  person  shall  die  seized  of  any  inheritance,  or 
of  any  right  thereto,  or  entitled  to  any  interest  therein,  not 
having  devised  the  same,  it  shall  descend  under  the  following 
rules :  — 

Rule  1.  Every  inheritance  shall  lineally  descend  forever  to 
the  issue  of  the  person,  who  died  last  seized,  entitled  or  hav- 
ing any  interest  therein,  but  shall  not  lineally  ascend,  except  as 
hereinafter  provided. 

Rule  2.  Females  shall  inherit  equally  with  males,  and 
younger  with  older  children.  Provided,  that  whenever  a  pa- 
rent shall  die  intestate,  having  in  his  or  her  lifetime,  settled 
upon  or  advanced  to  any  of  his  or  her  children,  any  real  or 
personal  estate,  such  child  so  advanced  in  real  estate  shall  be 
utterly  e.xcluded  from  any  share  in  the  real  estate  descended 
from  such  parent,  except  so  much  thereof  as  will,  when  added 
to  the  real  estate  advanced,  make  the  share  of  him  who  is  ad- 
vanced equal  to  the  share  of  those  who  may  not  have  been 
advanced,  or  not  equally  advanced.  And  any  child  so  ad- 
vanced in  personal  estate  shall  be  utterly  excluded  from  any 
share  in  the  personal  estate  of  which  the  parent  died  pos- 
sessed, except  so  much  thereof  as  will,  when  added  to  the  per- 
sonal estate  advanced,  make  the  share  of  him  who  is  advanced 
equal  to  the  share  of  those  who  may  not  have  been  advanced, 
or  not  equally  advanced.  And  in  case  any  one  of  the  chil- 
dren shall  have  been  advanced  in  real  estate  of  greater  value 
than  an  equal  share  thcrfof  which  may  come  to  the  other  chil- 
dren, he  or  his  legal  representatives  siiall  be  charged  in  the 
distribution  of  the  personal  estate  of  such  deceased  parent, 
with  the  excess  in  value  of  such  real  estate  so  advanced  as 


Chap.  38.]  descents.  249 

aforesaid,  over  and  above  an  equal  share  as  aforesaid.  And 
in  case  any  of  the  children  shall  have  been  advanced  in  per- 
sonal estate  of  greater  value  than  an  equal  share  thereof  which 
shall  come  to  the  other  children,  he  or  his  legal  representatives, 
shall  be  charged  in  the  division  of  the  real  estate,  if  there  be 
any,  with  the  excess  in  value,  which  he  may  have  received  as 
aforesaid,  over  and  above  an  equal  distributive  share  of  the 
personal  estate. 

Rule  3.   The   lineal    descendants    of  any    person    deceased  Lin.  descend'ts 

■     , ,  .     .  1      ,        1   •      ,  1  1  to  represent 

shall  represent  their  ancestor,  and  stand  m  the  same  piace  as  ancestor.— R. 
the  person  himself  would  have  done  had  he  been  living.  S.  c.  38,  E.  3. 

Rule  4.    On  failure  of  lineal  descendants,  and  where  the  in-  ,';°Jifon,^eri- 
heritance  has  been  transmitted  by  descent  from  an  ancestor  or  tance,  when 
has  been  derived  by  gift,  devise,  or  settlement  from  an  ancestor,  a|;"e™ton'!!.R!'^ 
to  whom  the  person  thus  advanced  would,  in  the  event  of  such  s.  c.  38,  E.  i. 
ancestor's  death,  have  been  the  heir  or  one  of  the  heirs,  the  in- 
heritance shall  descend  to  the  next  collateral  relations,  capa- 
ble of  inheriting,  of  the  person  last  seized,  who  were  of  the 
blood  of  such  ancestor,  subject  to  the  two  preceding  rules. 

Rule  5.    On  failure  of  lineal  descendants,  and  where  the  in-  When^not  de- 
heritance  has  not  been  transmitted  by  descent  or  derived  as  "J'sjor^ '^  ^g 
aforesaid    from    an    ancestor,  or  where,  if  so    transmitted  or  bi^d  extinct. 
derived,  the  blood  of  such  ancestor  is  extinct,  the  inheritance  g  5]   "  °'     ' 
shall  descend  to  the  next  collateral  relation,  capable  of  inherit- 
ing, of  the  person  last  seized,  whether  of  the  paternal  or  ma- 
ternal line,  subject  to  the  second  and  third  rules. 

Rule  6.    Collateral  relations  of  the  half  blood  shall  inherit  Hai^  to^j^nherit 
equally  with  those  of  the  whole  blood,  and  the  degrees  of  rela-  bYood^^ 
tionship  shall  be  computed  according  to  the  rules  which  prevail 
in  descents  at  common  law.     Provided  alivays,  that  in  all  cases  Parent  when  to 
where  the  person  last  seized  shall  have  left  no  issue  capable  of  J,"j'?,"'i.g°  g  ,,_ 
inheriting,  nor  brother,  nor  sister,  nor  the  issue  of  such,  the  in-  38,  E.  6. 
heritance  shall  vest  in  the  father  if  living,  and  if  not,  then  in 
the  mother  if  living. 

Rule  7.    No  inheritance  shall  descend  to  any  person,  as  heir  None  to  inherit, 
of  the  person  last  seized,  unless  such  person  shall  be  in  life  at  borHn'ten''' 
the  death  of  the  person  last  seized,  or  shall  be  born  within  ten  mouths,  &c.— 
lunar  months  after  the  death  of  the  person  last  seized.  '    '^'    '   '  ' 

Rule  8.  When  any  person  shall  die,  leaving  none  who  can  wiienwjdow^ 
claim  as  heir  to  him,  his  widow  shall  be  deemed  his  heir,  and  e.  s^c. 38,  r!  8. 
as  such  shall  inherit  his  estate. 

Ruled.  Where  any  person  shall  die,  leaving  relations,  citi- Alien  heirs  jiot 
zens  of  the  United  States,  capable  of  inheriting  his  estate  if  ei- relations, be- 
there  mi^ht  be  no  other  or  nearer  kindred,  but  who,  by  a  rule  ingcUizens, 

,,    ,,  '^  ,  i    •     I       'i    ,  ii  ii  frommhentmg. 

ol  the  common  law,  cannot  inherit,  because  there  are  others  _i;.  s.  c.  38, 
of  nearer  kindred,  (as  aliens  or  others,)  who  cannot  hold  land  R-  9- 
in  the  Stale,  the  estate  of  such  deceased  person  shall  descend 
to  such  of  the  first-mentioned  relations  as  would  be  entitled  if 
there  were  no  other  relations  whatever. 

Rale  10.  When  there  shall  be  no  legitimate  issue,  every  J','ji,'™f„^„. 
illegitimate  child  of  the  mother,  and  the  descendant  of  any  herit  from  their 


250 


mother.— R. 
c.  38,  K.  10. 


And  from  each 
other. 


Legitimate 
may  inherit 
from  them. 

Dying  ■without 
issue,  mother 
to  be  heir. 


Estates  for  life. 
not  devised,  to 
be  inheritances. 


DIVORCE   AND   ALniONY.  [ChaP.   39. 

.=nch  child  deceased,  shall  be  considered  an  heir,  and  as  snch 
shall  inherit  her  estate  ;  but  such  child  or  descendant  nhall  not 
be  allowed  to  claim,  as  representing  such  mother,  any  part  of 
the  estate  of  her  kindred,  either  lineal  or  collateral. 

Rule  11.  Illpgitimatc  children  shall  be  con-idercd  legitimate 
as  between  themselves  and  their  reprcsentalives,  and  their 
estates  shall  descend  accordingly  in  the  same  manner  as  if 
they  had  been  born  in  wedlock.  And  in  case  of  the  death  of 
any  such  child  or  his  issue,  without  leaving  issue,  his  estate 
shall  descend  to  such  person,  as  would  inherit  if  all  such  chil- 
dren had  been  born  in  wedlock.  Provided  abcai/s,  that  when 
any  illegitimate  child  shall  die  without  issue,  his  inheritance 
shall  vest  in  the  mother  in  the  same  manner  as  is  provided  in 
rule  six  of  this  chapter. 

Rii/e  12.  Every  estate  for  the  life  of  another,  not  devised, 
shall  be  deemed  an  inheritance  of  the  deceased  owner,  within 
the  meaning  and  operation  of  this  chapter. 

Ruk  13.  Every  person,  in  whom  a  seizin  is  required  by  any 
of  the  provisions  of  this  chapter,  shall  be  deemed  to  have  been 
seized,  if  he  may  have  had  any  right,  title,  or  interest  in  the  in- 
heritance. 


Sect.  1.  Rule  (1.)  Bevise  to  heir,  3  Mur.  209. 
Rule  (2.)  Advancement:  whenmlued,  6  Ire.  4;  irfiO/iXHIre.  14S;  iolmshandbyfallKr- 
in-law,  11  Ire.  68;  to  grandchild,  7  Ire.  Eq.  159.     As  to  tdJoic,  Bus.  325,  7 
Ire.  Eq.  159.     Partial  intestacy,  i  Ire.  Eq.  9,  5  lb.  7. 
"     (4.)  2  Ire.  315;  2  Jones,  Eq.  82;  2  D.  &  B.  308;  1  Dev.  333. 
"     (5.)  lire.  387;  5  Ire.  Eq.  280. 
"    (6.)  1  Jones,  344. 
"    (11.)  6  Ire.  407;  S  L-e.  39. 


CHAPTER    39. 


DIVORCE   AND   ALIMONY. 


Section 

1.  Courts  of  law  and  equity  to  have  juris- 

diction of  divorce  and  alimony. 

2.  Divorce  or  alimony,  when  granted. 

3.  Divorce  from  bed  and  board  and  ali- 

mony, when  granted. 

4.  Alimony  to  spendthrift's  wife. 

6.  Proceedings  to  obtain  divorce  or  ali- 
monj".  Affidavit  of  the  facts.  Se- 
curity for  costs. 

6.  Petition,  how  sei-ved.    Material  facts 

submitted  to  a  jury. 

7.  Cause  of  complaint  must  have  existed 

six  montlis,  and  residence  tlirce  years. 

8.  Unless  the  husband  is  removing  his 

property,  when  it  may  be  fded  forth- 
with and  his  property  sequestered. 


Section 
9.  Rule  as  to  depositions  and  costs. 

10.  Bars  te  divorce  on  account  of  adul- 

tery. 

11.  Decree,   when  and  of  what,    made. 

Iimoccnt  party  may  marry  again. 
Children  not  made  illegitimate. 

12.  Alimony,  how  secured  and  enforced. 

13.  Wife  divorced  from  bed  and  board,  to 

have  property  thereafter  acquired; 
may  sue  and  be  sncii  alone. 

14.  In  petition  for  alimony,  court  may  de- 

cree that  petitioner  may  liave  and 
dispose  of  all  after  acquired  prop- 
erty, and  may  sue,  &c. 

15.  Alimony  allowed  pending  suit.    Ap- 

peal allowed- 


Chap.  39.] 


DIVORCE   AND    ALIMONY. 


251 


16.  Appeal  allowed  to  supreme  court. 
Suits  for  divorce  removed  to  supreme 
court. 


17.  Offendiu.?  party  divorced,  not  allowed 
to  marry  again,  during  lil'e  of  other 
party. 


1.  The  superior  courts  of  law  and  the  courts  of  equity  sliall  ^"g^f^f  d?"  '" 
have  sole  original  jurisdiction  in  all  applications  for  divorce,  vorce  and  aU- 
for  divorce  and  alimony,  and  for  alimony  alone.  _       _      ^m'^sTi!^'  ^' 

2.  Whenever  it  shall  be  adjudged,  in  tiie  manner  herein- liivoVce or  aii- 
after  mentioned,  that  either   party,  at  the   time  of  marriage,  ^,™[^j'!!l'p^_  §. 
was    and    still   is    naturally    impotent,    or    that    either    party  c.'ss,  s.'a.  '" 
has  separated  him  or  herself  from  the  other,  and  is  living  in 
adultery,  or  that  any  other  just  cause  for  a  divorce  exists,  the 

injured  person  may  obtain  a  divorce,  either  from  bed  and 
board,  or  from  the  bonds  of  mati-imony,  at  the  discretion  of 
the  court ;  or  a  decree  for  alimony  only,  if  no  more  be  de- 
manded, to  continue  as  long  as  the  justice  of  the  case  may 
require. 

3.  If  any  person  shall  abandon  his  family,  or  maliciously  ^^'^'^^  |^"™J^ 
turn  his  wife  out  of  doors ;  or  by  cruel  and  barbarous  treat-  and  klimony, 
meiit  endanger  her  life,  or  offer  such  indignities  to  her  person  ^'g"g=™"39*' 
as  to  render  her  condition  intolerable  or  life  burdensome,  the  s.  3.'    '   '     ' 
court  may  grant  a  divorce  from  bed  and  board,  and  also  allow 

her  such  alimony  as  her  husband's  circumstances  will  admit, 
not  exceeding  one  third  part  of  the  annual  income  or  profits  of 
his  estate,  or  of  his  occupation  or  labors ;  or  assign  to  her 
separate  use  such  part  of  the  real  and  personal  estate  of  the 
husband,  not  exceeding  one  third  thereof,  as  the  justice  of 
the  case  may  require ;  which  shall  continue  until  reconcilia- 
tion. 

4.  When   a  man    shall   become    an    habitual  drunkard   or  Alimony  to 
spendthrift,  wasting  his  substance  to  the  impoverishment  of^f".— K.  i.e. 
his  family,  his  wife  may  claim,  and  the  court  may  decree  ali-  39,  s.  4. 
mony  as  aforesaid.     Provided  always,  that  nothing  in  this  or 

the  preceding  section  shall  be  construed  an  anywise  to  preju- 
dice the  rights  of  the  husband's  creditors. 

5.  The  husband  or  wife  seeking  to  be  divorced,  or  the  wife  ^/■°^''j™j|i"Ss  io 
claiming  alimony,  may  exhibit  a  petition  or  libel  in  court  dur-  or  .aUmou'y."' 
ing  term  time,  or  in  vacation  at  least  twenty  days  before  the 

next  term,  setting  forth  particularly  and  specially  the  causes  of 
complaint,  and  shall,  together  with  such  petition  or  libel,  ex- 
hibit an  affidavit  taken  before  the  clerk  and  master,  clei'k  of 
the  superior  court,  or  the  presiding  judge,  or  some  justice  liv- 
ing in  the  county  where  such  petitioner  resides,  that  the  facts  Affidavit  of 
contained  in  such  petition  or  libel  are  true  to  the  best  of  the  ''^"^'^^ 
affiant's  knowledge  and  belief,  and  that  the  said  complaint  is 
not  made  out  of  levity  or  by  collusion  between  the  said  hus- 
band and  wife ;  and  if  for  divorce,  not  for  the  mere  purpose  of 
being  freed  and  separated  from  each  other,  but  in  sincerity  and 
ti-uth  for  the  causes  mentioned  in  the  petition  or  libel ;  bond  Secui-Uv  for 
with  security  for  the  prosecution  of  the  same  being  first  given,  g'J^g.'o. '' 
as  in  other  cases  at  law  or  equity;  unless  the  petitioner  make 
affidavit  that  he  or  she  is  not  worth  two  hundred  dollars. 


252  DIVORCE   AND   ALIMONY.  [ChAP.    39. 

Petition,  how        6.  Thereupon  a  subpoena  shall  issue,  directed  to  and  ooni- 

served.  Tit  i    •        ,  .  -    '•'■ 

manding  the  person  complanied  against  to  appear  at  the  next 
court  to  be  held  for  the  said  county,  then  and  tiierc  to  plead  or 
answer  to  the  petition  or  libel;  and  upon  due  proof,  at  the  re- 
turn of  the  process,  that  a  copy  thereof  was  served,  either  per- 
sonally on  the  party,  or  that  he  or  she  could  not  be  found,  and 
that  a  copy  thereof  was  left  at  his  or  her  last  place  of  abode  in 
the  county,  ten  days  before  the  day  of  the  return;  then  if  he 
or  she  shall  neglect  to  appear,  an  alias  subpa>na  sliall  issue, 
returnable  to  the  first  day  of  the  next  term,  and  be  served  in 
manner  aforesaid  ;  but  if  the  defendant  cannot  be  found,  then 
proclamation  shall  be  publicly  made  at  the  court  houioe  for  the 
party  to  appear  and  answer  as  commanded  by  the  subpoena, 
and  notice  of  the  suit  shall  be  given  in  such  newspapers  as 
the  court  may  order,  for  six  weeks ;  and  in  the  mean  time  such 
preparatory  rules  and  orders  in  the  cause  may  be  made,  as 
shall  be  necessary  to  prepare  it  for  trial :  when  the  court  may 
determine  ex  parle,  if  necessary.  Provided  alwaz/s,  that  the 
Material  facts  material  facts  charged  in  the  petition  or  libel  shall  be  submit- 
jubrmtt^d  to  a  ^^j  ^^  ^  j^^j.^^  ^^p^^^  whose  verdict  and  not  otherwise,  the  court 
39,  s.  B.  shall  decree. 

Cause  of  com-       7.  No  petition,  except  in  the  cases  mentioned  in  the  follow- 
LT  existed  v'J"g  section,  shall  be  sustained  under  this  chapter,  unless  the 
six  months,      petitioner  shall  state  and  swear,  that  the  facts,  the  ground  of 
fhi-eeyeMs.—  '^i^  o^  '^^1'  Complaint,  have  existed  to  his  or  her  knowledge  at 
E.S. 0.39,5.6.  least  six  months  prior  to  the  filing  of  the  petition;  nor  shall 
any  person  be  entitled  to  sue,  unless  he  or  she  shall  have  re- 
sided within  this  State  three  years  immediately  preceding  the 
exhibition  of  the  petition.    Provided,  that  the  said  three  years' 
residence  shall  not  be  j-equired  in  cases  sued  under  the  fourth 
section  of  this  chapter. 

bancUsre-"     ,    .^•^"  '^'^  '^'^^^^^  "^^''''^''®  ^^'^^^  ^'^^'^  ^'^  ^  sufficient  cause  for  a 
moving  his  pro-i<^i'^'0''c^  (absolute,  or  from  bed  and  board)  with  alimony,  the 
may^'be'flied"  "^'^^^^  may  exhibit  her  petition  or  libel  at  any  time,  in  case  her 
forthwith  and    husband  is  then  removing,  or  about  to  remove  his  effects  from 
que?tirX7'^'*'^'^  ^*^^^'  ^^  ^^^  ®'^^'^  likewise  state  and  swear,  that  she  doth 
Y      "verily  believe  that  she  is  entitled  to  alimony,  and  that  by  de- 
laying her  suit,  she  will  be  disappointed  of  the  same,  by  the 
removal  of  her  husband's  property  and  effects  out  of  the  State. 
And  in  such  cases  any  judge  may,  thereupon,  make  an  order 
of  sequestration  or  otherwise,  as  the  purposes  of  justice  may 
seem  to  require, 
ositions  amf ''" .    ^-  ^"''"^  parties'  may  read  depositions  on  the  trial,  as  in  causes 
costs.-K.  S.  c.  in  equity,  and  the  court  may  decree  by  what  party,  the  costs, 
39,  s.  7.  or  any  part  of  them,  shall  be  paid. 

Barstodivo*c      10.  If,  in  any  suit  for  divorce  for  the  cause  of  adnltcrv.  it 

on  account  of    „i,    ii    i  i    ±\     i.   a\  i    •    .-/t  ■  ■  •.  n     ,       \ 

nduitery.-U.    ^"au  be  proved  that  the  plamtifli  has   been  guilty  of  the  like 

S.  C.39,  s.  8.     crinne,  or  has  willingly  admitted  the  defendant  i'nio  conjugal 

society  or  embraces  after  he  or  she  knew  of  the  criminal'fact ; 

or  that  the  husband,  if  the  piaintifl;  allowed  of  his  wife's  ])ros- 

titution,  or  exposed  her  to  lewd  company  whereby  she  became 


Chap.  39.]  divorce  and  alimony.  253 

ensnared  to  the  crime  aforesaid,  the  same  shall  be  a  good  de- 
fence, and  a  perpetual  bar  against  the  said  suit. 

11.  The  court  after  hearing  any  cause,  may  determine  the  Deoroc,  when 
same  as  to  law  and  justice  shall  appertain,  by  either  dismiss-  and  of  what 
ing  the  petition  or  libel,  or  decreeing  a  divorce  and  separation 

from  bed  and  board,  or  from  the  bonds  of  matrimony,  or  that 
the  marriage  is  null  and  void ;  or  that  the  wife  shall  have  ali- 
mony agreeable  to  her  prayer ;  and  the  court  shall  have  power 
also   to   decree   alimony  to  the  wife  in  the  case  of  absolute 
divorce   upon  the   petition  of  the  wife ;  and  after  a  sentence 
nullifying  or  dissolving  the  marriage,  all  and  every  the  duties, 
rights,  and  claims  of  the  parties,  in  virtue  of  said  marriage, 
shall  cease  and  determine;  and  the  plaintiff,  or  innocent  per- innocent  party 
son,  shall  be  at  liberty  to  marry  again.     Provided  aliuays,  that  "jj^,,™*"''' 
nothing  herein  contained  shall  be  construed  to  render  illegiti-  Children  not 
mate  any  child  in  esse,  or  born  of  the  body  of  the  wife  during  mafe!— Rfs"o. 
coverture.  39,  s.  9. 

12.  The  husband,  against  whom  alimony  or  separate  main-  Alimony,  how 
tenance  may  be  decreed,  shall  give  good  and  sufficient  secu-  forced.— R.  s"' 
rity  in  open  court,  to  be  approved  by  the  court,  for  the  faithful  c.  39,  s.  lo. 
performance  of  the  decree  ;  and,  in  case  of  failure,  shall  stand 
committed  until  the  order  or  decree  of  the  court  is  complied 

with  ;  or  the  court  may  direct  execution  to  issue  for  the  money 
decreed,  and  a  writ  of  venire  to  a  jury  to  lay  off  and  allot  the 
real  or  personal  estate  decreed  to  the  wife. 

(    13.  When  the  court,  on  petition  of  the  wife,  shall  decree  a  Wife  divorced 
divorce  from  bed  and  board,  the  wife  so  divorced  shall  have  j^^^j'^jjj  {J"^^ 
capacity  to  acquire,  retain,  and  dispose  of,  by  deed  or  will,  or  property  tliere- 
in  any  other  manner,  all  such  property  as  may  thereafter  be  "'^''""  "^quired; 
procured  by  her  own  industry,  or  may  accrue  to  her  by  descent,  sued  alone.— 
devise,  gift,  bequest,  or  in  any  other  manner ;  and  such  prop-  ^^  ^-  *=•  ^^'  *• 
erty,  during  such  time  as  the  parties  shall  remain   unrecon- 
ciled, shall  not  be  liable  to  the  power,  dominion,  control,  or 
debts  of  her  husband  ;  but,  on  her  death  without  a  disposition 
by  her,  shall  be  transmissible  as  though  she  were  unmarried; 
and  the  wife  may  sue  and  be  sued,  without  joining  her  hus- 
band,  and  may  claim  redress  for,  and  be  made  liable  upon, 
contracts  and  injuries  thereafter  made  and  done,  as  though  she 
were  a/eme  sole.  \ 

I    14.    When   aiiy  married  v.'oman  shall  file  her  petition  for  i,,  snitfor 
alimony,  and   pray  that  such  property  as  she   may  thereafter  i^i"™".^'-'^''"''' 
acquire  may  be  also  secured  to  her,  the  court  may,  if  deemed  that  petitioner 
proper,  decree  that  she  may  sue  and  be  sued  in  her  own  name,  "?='?  ''^■*'9  ",."'^ 
without  joining  the  name  of  her  husband,  and  that  all  such  acquired  prop- 
property  as  may  thereafter  be  procured  by  her  own  industry,  ^'"'^'vf"^p"lJ' 
or  may  accrue  to  her  by  descent,  devise,  gift,  bequest,  or  in  any  o.  z^\s.\i. 
other  manner,  shall  be  secured  to  her,  and  shall  not  be  liable 
to  the  dominion,  control,  or  debts  of  her  husband;  but  on  her 
death,  without  a  disposition  by  her  by  will,  deed,  or  otherwise, 
shall   be  transmissible  iii  the  sanie  manner  as  if  she  were  a 
feme  sole. 

22 


254 


DRAINING   AND  DAMMING  LOW   LANDS.       [ChAP.    40. 


Alimouy,pend-      15.    In  petitions  for  divorce  and  alimony,  or  for  alimony, 
c"!!"''"^^^^'  where  the  matter  set  forth  in  such  petition  shall  be  sufficient 
to  entitle  the  petitioner  to  a  decree  for  alimony,  the  court  may 
in  its  discretion,  at   any  time  pending  the   suit,  decree  such 
reasonable  alimony  for  the  support  and  sustenance  of  the  pe- 
titioner and  her  family,  as  shall  seem  just,  under  all  the  cir- 
Appeai  from     cumstances  of  the  case.     And  from  such  interlocutory  decree 
snpreme'court  there  may  be  an  appeal  to  the  supreme  court,  but  that  court 
shall   reexamine  onlj'  the  sufficiency  of  the  petition  to  entitle 
the  petitioner  to  relief. 
Appeal  from         16.    In  every  case  of  application  for  a  divorce,  or  for  alimo- 
supremrcoart  "3^'   ^"'^   ^  Unol  judgment  thereon,  the  party  against  whom 
judgment  is  rendered  may  appeal  to  the  supreme  court,  whose 
duty  it  shall  be,  according  to  the  facts  ascertained  in  the  court 
below,  to  make  such  decree  as  shall  be  just;   and  such  appeal 
Suits  removed  may  be   granted  without  security,  if  the  situation  of  the  ap- 
coun^— R.^S. 0.  P^^'^"t  shall  render  it  necessary  for  the  purposes  of  justice. 
39,  s.  13.—        And  any  suit  may  be  removed  to  the  supreme  court,  before  a 
'  "■     ■       hearing,  in  the  same  manner,  and  in  the  like  state  of  plead- 
ings, as  suits  in  equity. 

17.    No  defendant,  or  party  offending,  from  whom  a  divorce 
shall  be  obtained  from  the  bonds  of  matrimony,  shall  be  allow- 
marry  agam      ed  to  marry  again,  during  the  life  of  the  plaintiff  or  innocent 
th"otfierpa°rty.  person ;  and  if  such  offending  party  shall  so  marry,  he  or  she 
—  R.  S.  c.  39,    shall  be  deemed  guilty  of  felony,  and  on  conviction  shall  be 
punished  as  persons  convicted  of  bigamy. 


Offending  par- 
ty divorced, 
not  allowed  to 


s.  14. 


Sect.  1.  Absent  parties,  1  D.&  B.  Eq.  566. 

Sect.  2.  Adultery :  discretitmal  Jbr,  1  Dcv.  Eq.  352;  single  act  of,  2  Hawks,  189;  nfter 
separatum,  2  Ire.  65,  5  lb.  674,  13  lb.  90,  Fraud,  3  Dev.  585,  lb.  548,  Jdiocy,  3"lrc. 
Eq.  91,  2  lb.  470. 

Sect.  5.  Fm-m  of  petition,  2  D.  &  B,  377,  lb.  64,  Amemkd  petition,  13  Ire.  90.  Se- 
questration, 1  Hay.  482,  lb.  347. 

Sect.  6.  Form  of  issues,  7  Ire.  464.     Confession,  10  Ire.  506, 

Sect.  10.  Alimony,  6  Ire.  293;  pend.  lite,  1  Joues,  Eq.  118. 


CHAPTER    40. 


DRAINING  AND  DAMMING  LOW  LANDS. 


Section 

1.  Mode  of  proceciling  by  petition  for 

draining  or  damming  low  lands. 
Court  to  appoint  seven  commission- 
ers. 

2.  Their  duty. 

3.  Slinll  report  to  court.     On  payment 

of  damages  and  costs,  easement  to 
vest  in  fee.  No  canal  or  dam  made 
througli  yard,  &c.;  or  to  injure  mill, 
or  create  nuisance  by  stjignant  wa- 
ter, &c. 


Section 
4.  Fences  or  paths  across  canal  or  im- 

bankment  made  by  proprietor,  when. 
6.  Earth  for  dam,  how  taken;  owner  of 

land  may  adjoin  his  own  dam,  when. 

6.  Commissioners  to  designate  width  of 

land,  for  use  of  canal,  &c.  Width 
fur  dam  not  to  exceed  five  times  its 
base. 

7.  Earth  excavated  for  canal,  removed 

or  levelled. 


Chap.  40.]    draining  and  damming  low  lands. 


255 


Section 

8.  Owner  of  land  not  to  open  drain  within 

thirty  feet  of  canal. 

9.  JIo  Je  of  proceeding  to  drain  into  a  ca- 

3ial.  Not  to  he  cut  into  if  its  value 
be  endangered.  Unless  the  danger 
can  be  avoided  by  imposing  duties  or 
labor.  And  no  final  decree  made  for 
cutting,  till  the  work  is  done  and  the 
efl'ect  seen. 
10.  Commissioners  to  assess-  and  appor- 
portion  labor  for  repairing  canals. 
Report  whea   confirmed,   to   stand 


1  Section 

1  as  a  judgment   against  parties  and 

privies. 

11.  Jlode  of  proceeding  for  joint  repairs 

of  canals. 

12.  Persons  failing  to  work,  how  recovered 

against. 

13.  Assignees,   &c.,  bound  to  repair  as 

original  owners. 

14.  All  persons  interested,  to  contribute  to 

repair  dams,  &c.  Mode  of  proceeding. 

15.  Compensation  of  commissioners.  Costs 

of  appeal  paid  as  court  directs. 


1.    Any  person,  owning  pocosin,  swamp,  or  flat  lands,  or  Mode  of  pro- 
owning  low  lands    subject  to   inundation,  which   cannot  be  ti^tbnfor dmml 


mgoruammni;; 


conveniently  drained  or  embanked  so  as  to  drain  otF  or  dam  i 
out  the  water  from  such  lands,  except  by  cutting  a  canal  or '''^^' '""'**■ 
erecting  a  dam  through  or  upon  the  lands  of  other  persons, 
may  by  petition  apply  to  the  county  or  superior  court  of  law  of 
the  county,  in  which  the  lands  sought  to  be  drained  or  em- 
banked, or  some  part  of  such  lands  lie,  setting  forth  the  par- 
ticular circumstances  of  the  case,  the  situation  of  the  land  to 
be  drained  or  embanked,  to  what  outlet  and  through  whose 
land  he  desires  to  drain,  or  on  what  lands  he  would  erect  his 
dam,  and  who  are  the  proprietors  of  said  lands ;  whereupon 
a  copy  of  the  petition  shall  be  served  on  each  of  the  propri-  ^°."^'  *"  ''P" 

i  1  iU      1         ■  f  ii  i-i-  iu  J-     1     II  pomt  seven 

etors,  and,  on  the  hearing  ot  the  petition,  the  court  shall  ap- comm'rs.— 
point  seven  disinterested  freeholders  for  commissioners  to  be  ^ ^g. ^- *"> '*■  ^' 
summoned  and  sworn  by  the  sheriff  on  the  premises.  s.  i,  2. ' 

2.  The  commissioners,  or  a  majority  of  them,  on  a  day  to  Duty  of  com- 
be appointed  by  the  sheriff,  of  which  each  proprietor  of  land  R.'f.'TTo  sTi. 
aforesaid  is  to  be  notified  at  least  five  days  beforehand,  shall— 1S52,  c.  07, 
meet  on  the  premises  and  view  the  lands  to  be  drained  or  em-  ^'  ' "" 
banked,  and  the  lands  through  or  on  which  the  drain  is  to 
pass  or  the  embankment  to  be  erected,  who  shall  determine 
and  report  whether  the  lands  of  the  petitioner  can  be  conven- 
iently drained  or  embanked  except  through  or  on  the  lands  of 
the  defendants  or  some  of  them  ;  and  if  they  are  of  opinion 
that  the  same  cannot  be  conveniently  done  except  through 
or  on  such  lands,  they  shall  decide  and  determine  the  route 
of  the  canal  or  embankment,  the  width  thereof  and  the  depth 
or  height,  as  the  case  may  be,  and  the  manner  in  which  the 
same  shall  be  cut  or  thrown  up,  considering  all  the  circum- 
stances of  the  case,  and  providing  as  far  as  possible  for  the 
eft'ectual  drainage  or  embankment  of  the  water  from  the  pe- 
titioner's land,  and  also  securing  the  defendant's  lands  from 
inundation,  and  every  other  injury  to  which  the  same  may 
be  probably  subjected  by  such  canal  or  embankment ;  and 
they  shall  assess,  for  each  of  the  defendants,  such  damage  as 
in  their  judgment  will  fully  indemnify  him  for  the  use  of  his 
land  in  the  mode  proposed. 

o.    The  commissioners  shall  report,  in  writing  under  their  si'^^"  report  to 

'         '  .    °  court. 


256  DRAINING   AND   DAMMING   LOW   LANDS.     [ClIAP.   40. 

On  payment  of  hands,  the  whole  matter  to  the  court,  who  shall  confirm  the 
coS^ITsemeiit  same,  unless  good  cause  be  shown  to  the  contrary ;  and  on 
to  vest  in  fee.  payment  of  the  damages  and  costs  of  the  proceedings,  the 
No  canal  or      court  shall  order  and  decree  that  the  petitioner  may  cut  the 

dam  made  i  •        i.i  i        i  ,   •      ,i  ^  t         ,    , 

through  yard,  canal  or  raise  the  embankment  in  the  manner  reported  and  de- 
&c:orto'injure  termined  by  the  commissioners;  and  thereupon  the  petitioner 

mill,  or  create      i     n  i,  •       i  •      r         •        i         £•   ,i  '        ^  '.  ,         ■,, 

nuisance  by      Shall  be  seized  in  lee-simple  of  the  easement  aforesaid.     Pro- 
&c^^R^™'"'  '"^'^'^^■'  ^'owever,  that,  without  the  consent  of  the  proprietor,  such 
40°'s.2.  — 1852^  canal  or  embankment  shall  not  be  cut  or  raised  through  or  on 
c.  57,  s.  1, 2.      his  yard  or  curtilage,  nor  be  allowed  when  the  same  shall  in- 
jure any  mill,  by   cutting  off  or  stopping  the  water  flowing 
thereto  ;  nor  shall  said  dam  be  allowed  so  as  to  create  a  nui- 
sance by  stagnant  water,  or  cut  off  the  flow  of  useful  springs 
or  necessary  streams  of  water,  or  stop  any  ditches  of  such  pro- 
prietor when  there  is  no  freshet. 
rc"o';fc°a7afor      '*"    ^"^  proprietor,  through  or  on  whose  land  such  canal 
embankment,    niay  be  cut  or  embankment  raised,  may  put  a  fence  or  make 
prietor/wC   P'^*'^^.  across  the  same,  provided  the  usefulness  thereof  be  not 
— E.  S.  c.  40,  impaired  ;  and  the  owner  of  the  canal  or  dam,  his  heirs  and 
5r^s."iT^'  "'  assigns,  shall  at  all  times  have  free  access  to  the  same,  for  the 
purpose  of  making  and  repairing  them  ;  doing  thereby  no  un- 
necessary damage  to  the  lands  of  the  proprietors. 
how'tik"  •'''""      ^'    "^'^^  earth  necessary  for  the  erection  of  the  dam  may  be 
owner^oMand  taken  from  each  side  of  it,  or  wherever  else  the  commissioners 
may  adjoin  his  may  designate  and  allow.     And  such  dam  may  be  removed 
T^en.'""'         by  the  proprietor  of  the  land,  his  heirs  or  assigns,  to  any  other 
part  of  his  lands,  and   he  may  adjoin   any  dam  of  his  own 
thereto,  if  allowed  by  the  court  on  a  petition  and  such  pro- 
ceedings therein  as  are  provided  in  this  chapter,  as  far  as  the 
same  may  apply  to  his  case.     Provided  always,  that  the  use- 
fulness of  the  dam  will  not  be  thereby  impaired  or  endan- 
gered. 
de°sT^ate'°  6.    The  commissioners  shall  designate  the  width  of  the  land 

widtTTofland  to  be  left  on  each  side  of  the  canal  or  dam,  to  be  used  for  the 
can.T&c!  protection  and  reparation  thereof,  which  land  shall  be  alto- 
Width  for  dam  gethcr  under  the  control  and  dominion  of  the  owner  of  the 
fiveumes'iu  ^^"^^  °^  '^^™'  except  as  aforesaid.  Provided,  hoiccver,  that,  in 
base.  no  case,  shall  a  greater  width  of  land  on  both  sides,  inclusive, 

of  a  dam,  be  taken  than  five  times  the  base  of  such  dam. 
fdforc'a'^iaVrt      '^ '    '^'^^  ^^''"^  excavated  from  the  canal  shall   be  removed 
moved  orldv-   away  Or  levelled  as  nearly  as  may  be  with  the  surface  of  the 
elied.  adjacent  land,  unless  the  commissioners  shall  otherwise  spe- 

cially allow. 
l^nTnotTo"'^  ^"  "^^^"^  proprietor  of  any  swamp  or  flat  lands,  through  which 
ofien  drain  a  Canal  passes,  shall  not  have  a  right  to  open  or  cut  any  drain 
feet''of  canal  ^^'^''V'  ^'^'''^  ^^^^^  thereof,  but  by  tlm  consent  of  the  owner.  Such 
proprietor,  however,  and  other  persons  may  cut  into  such  canal 
in  the  manner  hereinafter  provided. 
Mode  of  pro-  9.  Any  person,  desirous  of  draining  into  the  canal  of  an- 
drain'into  a  o^'^'''"  P^'rson  as  an  outlet,  may  do  so  in  the  manner  lierein- 
canal.  before  provided,  and,  in  addition  to   the   persons  directed  to 


Chap.  40.]    draining  and  damming  low  lands.  257 

be  made  parties,   all  others    shall  be    parties,  through   whose 
lands  or  canals  the  water  to  be  drained  may  pass  till  it  shall 
have  reached  the  furthest  artificial  outlet.     And  the  privilege 
of  cutting  into  such  canal  may  be  granted  under  the  same 
rules,  and  upon  the  same  conditions  and  restrictions,  as  are 
provided  in  respect  to  cutting  the  first  canal.     Provided,  how- jsctAnW  cut 
ever,  that  no  canal  shall  be  allowed  to  be  cut  into  another,  if  1^"' °.,',j',[f„^j'ro!f 
thereby  the  safety  or  utility  of  the  latter  shall  be  impaired  or  unless  tiio  dan- 
endangered.    And  provided  further,  that,  if  such  impairing  and  fy^ij"",  ^^  ;,„_ 
danger  can  be  avoided  by  imposing  on  the  petitioner  duties  posing  riu'ties 
or  labor  in  the  enlarging  or  deepening  such  canal,  or  otherwise,  XnlTn^iinai 
the  same  may  be  done ;  but  no   absolute   decree  for  cutting  decree  for  cut- 
such  second  canal  shall   pass,  till   the  said  duties  or  work  so  '"oJkXie'auli 
imposed  shall  be  performed  and  the  effect  thereof  is  seen,  so  eflfects  seen. 
as  to  enable  the  commissioners  to  determine  the  matter  wheth- 
er such  second  canal  ought  to  be  allowed  or  not. 

10.  Besides  the   damages    which   the   commissioners    may  Comm'rs  to  a^- 
assess  against  the  petitioner  for  the   privilege   of  cutting  into  j?^^  j^"^,^"^^"'^ 
such  canal,  they  shall  assess  and  apportion  the  labor  which  the  repixiring  ca- 
petitioner  and  defendants  shall,  severally,  contribirte  tovi'ards  g'^pg^.j  ^,,3„ 
repairing  the  canal  or  canals  into  or  through  which  the  peti- confirmed,  to 
tioner  drains  the  water  from  his  lands,  and  report  the  same  to  ment  against^" 
court;  which  when  confirmed  shall  stand  as  a  judgment  of  the  parties,  &c. 
the  court  against  each  of  the  parties,  his  executors  and  ad- 
ministrators, heirs  and  assigns. 

11.  Whenever  the  canals  or  any  of  them,  for  the  reparation  Mode  of  pro- 
of which  more  than  one  person  shall  be  bound  under  the  pro- |ofQ(,"J|p°[rs  of 
visions   of  the   preceding  section,   shall   need  to   be  repaired,  canals. 

any  of  the  persons  so  bound  may  notify  the  others  thereof, 
and  of  the  time  he  proposes  to  repair  the  same  ;  and  there- 
upon each  of  the  persons  shall  jointly  work  on  the  same  and 
contribute  his  proportion  of  labor,  till  the  same  be  repaired  or 
the  work  cease  by  consent, 

12.  And  in  case   the  person  so  notified  shall  make  default.  Persons  failing 
any  of  the  others  may  perform  his  share  of  labor  and  recover  recovered 
against  him  the  value  thereof,  on  a  scire  facias  to  be  issued  against. 

for  such  default;  in  which  shall  be  stated  on  oath  made  before 
the  clerk,  the  value  of  such  labor;  and  unless  good  cause  to 
the  contrary  be  shown  on  the  return  of  the  writ,  the  court  shall 
render  judgment  for  the  same  with  interest  and  costs. 

13.  All  persons,  to  whom  may  descend,  or  who  may  other-  Assignees,  &c., 

'  1         1        1      •        1    1  t     !•       ,1  ■       bound  to  repair 

Wise  own  or  occupy  lands   draineci  by  any  canal,  for  the  priv-  as  original 
ilege   of  cutting  w^hich    any  labor  for  repairing  is   assessed,  owners. 
shall  contribute  the  same,  and  shall  be  bound  therefor  to  all 
intents  and  purposes,  and  in  the  same  manner  and  by  the  same 
judgment,  as  the  original  party  himself  would  be,  if  he  occu- 
pied the  land. 

14.  Whenever  there  shall  be  a  dam,  canal,  or  ditch,  in  the  All  persons  ir.- 
repairing  and  keeping  up  of  which,  two  or  more  persons  shall  cfl'ntiihute  to 
be  interested  and  receive  actual  benefit  therefrom,  and  the  du- '•|'P'i''''''i''is 
ties  and  proportion  of  labor,  which  each  one  ought  to  do  and  "■  °' 

22* 


258  ELECTORS    OF   PRESIDENT    AND    VICE-PRESIDENT.    [ChAP.    41. 

Mode  of  pro-     perform  therefor,  shall  not  be  fixed  by  agreement,  or  by  the 
ceecing.  mode  already  in  this  chapter  provided  for  assessing  and  appor- 

tioning such  labor,  any  of  the  parties  may  have  the  same  as- 
sessed and  apportioned  by  petition  to  the  county  court  of  the 
county  in  which  such  duties  and  labor,  or  some  part  thereof, 
are  to  be   performed,  and  the  proceedings  therein  shall  be  by 
commissioners,  in  the  manner  in  this  chapter  already  provided. 
Compensation        15.    The  commissioners  shall  be  paid  each  two  dollars  per 
CotteTfappeal  ^^Y  ^°^'  ^'leir  service,  to  be  taxed  among  the  costs  ;  and  where 
paid  as  court     either  party  shall  appeal  to  the  superior  or  supreme  court,  the 
^^'^^^-  costs  of  the  appeal  shall  be  paid  as  the  court  may  direct. 


CHAPTER    41. 

ELECTORS   OF  PRESIDENT  AND  VICE-PRESIDENT. 


Section 

1.  State  divided  iuto  ten  electoral  dis- 

tricts. 

2.  Persons  qualified  to  vote  for  electors. 

Time  aud  place  of  election.  Certifi- 
cate of  poll  and  rettirn.  By  whom 
made.  Penalty  of  five  hundred  dol- 
lars in  case  of  failure. 

3.  Governor   to    proclaim    electors  and 

■warn  them  to  attend  at  Raleigh;  to 
deliver  them  a  list  of  votes,  and  lay 
one  before  Assembly. 


Sectios 

4.  Wicn  and  whefe  electors  shall  meet 

to  vote. 

5.  In  case  of  vacancy  in  offices  of  presi- 

dent and  vice-president,  governor  to 
issue  proclamation  for  election. 

6.  Penalty  on  electors  failing  to  attend. 

On  sheriff  refusing  to  hold  the  poll, 
making  false  return,  &c. 

7.  Compensation,  &c.,  of  electors. 

8.  May  supply  vacancies  in  their  body. 

9.  Pay  of  sheriff  for  holding  elections. 


State  divided  1-  TiiE  State  shall  be  divided  into  ten  districts  for  the  pur- 
tora/di'stricts.  P°^''  "^  choDsiiig  electors  for  President  and  Vice-President  of 
— E.  S.  c.4i,s.  the  United  States,  in  the  following  manner,  to  wit:  The 
1.— 1852,  c.  66.  gQ^j„(^jgs  (,f  Currituck,  Camden,  Pasquotank,  Perquimans, 
Gates,  Chowan,  Hertford,  Northampton,  Halifax,  Martin, 
Bertie,  Washington,  and  Tyrrell,  shall  compose  the  first  dis- 
trict. The  counties  of  Hyde,  Beaufort,  Pitt,  Craven,  Jones, 
Lenoir,  Wayne,  Greene,  Edgecombe,  Onslow,  and  Carteret, 
the  second  district.  The  counties  of  New-Hanover,  Bruns- 
wick, Columbus,  Bladen,  Sampson,  Cumberland,  Robeson, 
Duplin,  and  Richmond,  the  third  district.  The  counties  of 
Wake,  Franklin,  Warren,  Granville,  Orange,  Nash,  and  Johns- 
ton, the  fourth  district.  The  counties  of  Person,  Caswell, 
Alamance,  Chatham,  Randolph,  Guilford,  Moore,  and  Mont- 
gomery, the  fifth  district.  The  counties  of  Stokes,  Forsyth, 
Rockingham,  Davidson,  Davie,  Yadkin,  Surry,  Iredell,  Alex- 
ander, and  Ashe,  the  sixth  district.  The  counties  of  Catawba, 
Gaston,  Lincoln,  Mecklenburg, 'Rowan,  Cabarrus,  Union, 
Anson,  Stanly,  and  Clcaveland,  the  seventh  district.  The 
counties  of  Wilkes,  Watauga,  Caldwell,  Burke,  Rutherford, 


Chap.  41.]  electors  of  president  and  vice-president.  259 

McDowell,  Henderson,  Buncombe,  Yancy,  Haywood,  I\Iacon, 
Cherokee,  Jackson,  and  Madison,  the  eighth  district:  and  the 
State  at  large,  the  ninth  and  tenth  districts  ;  all  which  districts 
shall  be  denominated  electoral  districts. 

2.    The  persons  qualified  to  vote  for  members  of  the  house  Persons  quali- 
of  commons  of  the  General  Assembly  in  said  counties  respect-  efectors^tfme 
ively,  shall  meet  on  the  Tuesday  next  after  the  first  Monday  and  place  of 
of  November,  one  thousand  eight  hundred  and  fifty-six,  and  '^'®'^'""^' 
successively  every  four  years  thereafter,  at  the  places,  by  law 
established,  in  their  several  counties,  for  the  election  of  mem- 
bers of  the  General  Assembly,  and  there  give  their  votes  by 
ballot  for  ten  discreet  persons,  being  freeholders,  one  of  whom 
shall  actually  reside  within  each  of  tlie  said  electoral  districts ; 
the  polls  shall  be  held  in  the  same  manner  and  by  the  same 
officers,  and  under  the  same  rules  and  regulations,  as  the  polls 
for  the  election  of  members  of  the   General  Assembly ;    and 
the    sheriffs  of  the    several   counties,    or    other    officers    duly 
authorized,  who  shall   have    held  the  polls,  within  two  days 
after  the  day  of  holding  the  same,  (except  in  the  counties  of 
Cnrrituck,  Carteret,  and  Hyde,  in  which  counties  it  shall  be 
within  five  days,)  shall  ascertain  by  faithful  addition  and  com- 
parison, the  number  of  votes  for  every  person  who  shall  have 
been  voted  for  as  an  elector,  and  shall  certify  in  words,  and 
not  in  figirres,  under  their  hands  in  manner  and  form  follow- 
ing, to  wit:   I,  A.  B.  sheriff  of  county,   (or  deputy- Certificate  of 
sheriff;  or  other  officer  duly  authorized,  as  the  case  may  be,)  P°"  ""'^ '■''^■ 
do  hereby  certify,  that  an  election  was  held,  on  the  day  and  at 
the  places  fixed  by  law  within  the  said  county,  for  electors  of 
President  and  Vice-President  of  the  United  States,  and  that 
the  number  of  votes,  herein  specified,  opposite  the  names  of 
the  several  persons  following,  was  given  for  such  persons  as 
electors,  for  the  State  of   North   Carolina,  of   President  and 
Vice-President  of  the  United  States,  namely :  For  D.  C.  (here 
state  the  number  of  votes  given  for  D.  C.) :  For  E.  F.  (here 
state  the  number  of  votes  given  for  E.  F.,  and  so  on  until  the 
list  of  persons  voted  for  and  the  number  of  votes  shall  be  com- 
plete).    Given  under  my  hand,  this  day  of  in 
the  year  of  our  Lord  eighteen  hundred                  ;  and  two  fair 
copies  of   such  certificate   and  return  shall  be  made   by  the 
sheriff",  (deputy-sheriff  or  other  officer,  as  the  case  may  be,)  By  whom 
under  his  hand,  one  of  which  shall  be  delivered  to  some  one  "^'^'^" 
person    among   the  ten,  who  shall  have  therein  the  greatest 
number  of  votes    given  at  the  election   poll  so  held  by  the 
sheriff  or  other  officer  so  certifying,  and  the  other  shall  be  re- 
turned to  the  governor  within  twelve  days  after  the  day  of 
holding  the  said  polls.     And  in  case  of  failing  to  make  such  Penalty  of  ssoo 
returns  within  the  time  herein  prescribed,  the  sheriff  or  other  j,re'?-R."s.*^!'" 
ofiicer,  whose  duty  it  shall  be  so  to  do,  shall  forfeit  and  pay  to  *i.  "•  1.2.— 
the  State  the  sum  of  five  hundred  dollars,  to  be  recovered  by  |s52|c.55i 
the  attorney-general  in  the  superior  court  for  the  county  of  I652',  c.  159. 
Wake. 


260  ELECTORS   OF  PRESIDENT   AXD   VICE-PRESIDENT.    [ChAP.    41. 

Gov.  to  pro-  3.    The  governor,  within  three  days  after  the  expiration  of 

and  wfmuhem  ^'^^  ^^"^^  ^^^  the  receipt  of  such  certificates  and  returns,  shall 
t''-i'fendat      proceed  to  ascertain  therefrom  the  ten  persons  for  whom  the 
liver'Sie'maiist  §''^'1*^'"**  number  of  the  whole  number  of  votes  throughout  the 
of  votes  and     State  shall  have  been  given;    and  at  the  expiration  of  that 
Assembly.—"    t'"^*^  '^^  ^'^^ll  issue  his  proclamation,  and  cause  the  same  to  be 
K-^-cii,  s.    published  in  three  newspapers  of  the  city  of  Raleigh,  wherein 
s.'T.      ''^'     'he    shall  set  forth  the  names  of  the  persons  duly  elected  as 
electors,  and  warn    each  of  them    to    attend    at   the    city  of 
Raleigh  on  the  first  Wednesday  in  December  then  next  ensu- 
ing, to  vote  for  President  and  Vice-President  of  the  United 
States ;  and  he  shall,  on  or  before  the  said  first  Wednesday  in 
December,  make  out  three  lists  of  the  names  of  the  said  ten 
persons,  and    cause    the    same   to    be    delivered  to    them,  as 
directed  by  the  act  of  congress  ;  and  he  shall  lay  before  the 
General  Assembly,  for  their  inspection,  the  certificates  by  him 
received  from  the  sheriffs  as  aforesaid. 
\\Tienand  4.    The  ten  persons  for  whom  the  greatest  number  of  votes 

shall  m^eet  to ^  throughout  the  State  shall  appear  to  have  been  given,  shall  be 
vote.— R.  s.  c.  electors,  for  and  on  behalf  of  the  State,  to  vote  for  President 
'  ^'  "  and  Vice-President  of  the  United  States ;  and  shall  assemble 

in  the  city  of  Raleigh,  on  the  first  Wednesday  of  December, 
one  thousand    eight    hundred    and    fifty-six,  and  on  the  first 
Wednesday  of  December  next  after  their  appointment  in  every 
year  in  which  they  shall  be  appointed,  and  then  and  there  give 
their   votes  for  President  and  Vice-President  of  the    United 
States. 
Ill  case  of  va-       5.    Whenever  the  offices  of  President  and  Vice-President  of 
orpreiidrS""' the  United  States    shall   both    become  vacant,  the  governor, 
and  vice-presi-  upon  receiving  a  notification  of  such  vacancy  from  the  secre- 
fo&le  proX  tai-y  of  state  of  the  United  States,  shall  forthwith  issue  his 
Illation  for  cieo- proclamation,  directing  the  sheriffs  of  the  several  counties,  or 
i^sTi!^' ''' '^'    other  proper  officers,  to  hold  elections,  within  their  respective 
counties,   for   the  appointment  of  electors  of   President    and 
Vice-President  of  the  United  States,  on  the  day  prescribed  for 
holding  the  stated  elections  of  the  year  in  which  such  vacancy 
may  happen.     Prouidcd,  that  there  shall  be  a  space  of  two 
months  between  the  date  of  such  notification  and  the  said  first 
Wednesday  of   December;  but  if  there  should   not  be  such 
space,  the  governor  shall  specify  in  his  proclamation  that  the 
electors  shall  be  appointed  or  chosen  in  the  year  next  ensuing 
the  date  of  such  notification,  on  the  day  aforesaid ;    and  the 
electors,  appointed  in  the  manner  by  this  section  directed,  shall 
meet  at  the  city  of  Raleigh  on  the  first  Wednesday  of  Decem- 
ber after  their  appointment,  and  give  their  votes  for  a  Presi- 
dent and  Vice-President  of  the  United  States. 
Penalty  on  6.    Each   elector,  chosen  with  his  own  consent  previously 

ti^atSnd':""""  signilii^'d,  f>»'ling  to  attend  and  vote  for  a  President  and  Vice- 
President  of  the  United  States  at  the  time  and  place  herein 
directed,  (except  in  case  of  sickness  or  other  unavoidable  acci- 
dent,)   shall    forfeit    and    pay   four    hundred   dollars,   to    be 


Chap.  42.]  entries  and  grants. 

recovered  by  the  attorney-general,  in  the  superior  court  of 
Wake  county.  And  any  sherifF  or  other  officer  duly  author- 
ized for  that  purpose,  refusing  to  take  the  poll  when  thereunto 
required  by  a  person  qualified  to  vote,  or  making  or  signifying, 
or  delivering  or  transmitting  a  false  certificate  or  return  of  an 
election,  or  making  any  erasure  or  alteration  in  the  poll  books, 
or  refusing  to  suffer  any  candidate  or  person  qualified  to  vote, 
at  his  own  expense  to  have  a  copy  of  the  poll  books,  shall  for- 
feit and  pay  two  hundred  dollars,  one  half  to  the  use  of  the 
person  who  will  sue  for  the  same,  and  the  other  half  to  the 
use  of  the  State. 

7.  The  electors  shall  be  allowed  for  their  travelling  to  and 
from  the  city  of  Raleigh  and  their  attendance,  the  same  com- 
pensation as  may  be  allowed  members  of  the  General  Assem- 
bly, and  shall  be  entitled  to  the  same  privileges. 

8.  In  case  any  elector  should,  by  reason  of  sickness  or  other 
cause,  not  attend  and  give  his  vote  as  herein  prescribed,  the 
other  electors,  then  present,  shall  appoint  some  other  person  to 
supply  his  place ;  and  the  person  appointed,  shall  be  taken  and 
held  to  all  intents  and  purposes  as  an  elector  to  vote  for  Presi- 
dent and  Vice-President  of  the  United  States. 

9.  The  sheriff'  and  other  ofRcers,  for  holding  said  elections 
and  conveying  duplicate  certificates  to  the  governor,  shall  be 
allowed  the  same  fees,  and  the  same  7?er  dieni  pay  for  travel- 
ling, as  are  allowed  to  them  in  elections  for  members  of  con- 
gi'ess. 


261 


On  slierifls  re- 
fusing to  hold 
poll,  or  making 
false  vetiini, 
&c.— R.  S.  c. 
41,  s.  5. 


Compensation 
and  privileges 
of  electors. — 
E.  S.  c.  41,  S.6. 


May  supply  va- 
cancies in  their 
body. — R.  S.  c. 
41,  s.  7. 


Pay  of  sheriff 
for  holding 
elections.— R. 
S.  c.  41,  s.  6. 


CHAPTER    42, 


ENTRIES  AND   GRANTS. 


Section 

1.  What  lands  subject  to  entry.   In  what 

cases  land  covered  by  navigable 
waters  may  be  entered.  Regulation 
of  line  on  water.  Price  of  such 
land.  Owners  of  wharves  on  such 
land  may  enter  it.  Lands  covered 
by  lake  water  not  to  be  entered. 
Nor  swamp  land  of  two  thousand 
acres  in  one  body.  Marsh  or  swamp 
land  of  fifty  acres  entered  in  certain 
cases. 

2.  Entries  and  grants  of  laud  not  author- 

ized, void. 

3.  Entry-takers  and  surveyors  appointed. 

4.  When  a  vacancy,   clerk    of  county 

court  to  act  as  entry-taker. 

5.  Bonds  of  surveyors  and  entrj'-takers, 

&c.  Entry-taker  to  keep  office  at 
court  house. 


Section 

6.  Surveyors  may  appoint  deputies. 

7.  Price  at  which  lands    may   be   en- 

tered. 

8.  When  entry  money  to  be  paid.    Time 

of  payment  on  certain  entries  ex- 
tended.   Proviso. 

9.  On  failure  to  pay  the  price,  subsequent 

enterer  entitled. 

10.  In  case  of  lapse  same  person  not  to 

reiinter  within  one  year. 

11.  Entries,    how   made,    and    warrants 

issued. 

12.  Surveys,  how  made    and    returned. 

Chain  carriers  appointed  and  sworu. 
Special  surveyor,  when  appointed. 

13.  Surveys  to  bo  according  to  priority  of 

entry. 

14.  Wan'ant  of  survey,  when  lost  dupli- 

cate may  be  issued. 


262 


ENTRIES   AND    GRANTS. 


[Chap.  42. 


SECnojf 

15.  On  ilenth,  &c.  of  entry-taker,  succes- 

sor to  issue  warrants. 

16.  Entry-takers,  how  to  make  entries  for 

themselves. 

17.  Surveyors,  how  to  have  surveys  made 

for  themelves. 

18.  Entry-takers  to  make  annual  returns 

to  secretary  of  State. 

19.  Penalty  for  failure,  how  recovered. 

20.  Public    treasurer    to   receive    entry 

money. 

21.  Grants  to  issue,  on  what  certificates. 

22.  Grants,  how  authenticated.  All  grants 

to  be  registered.     Copies  may  be 
registered. 

23.  How  to  issue  on  death  of  enterer. 

24.  Seal  of  grant  lost,  may  be  renewed. 


Sectiox 

25.  Certain   grants  heretofore  issued   to 

surveyors,  &c.,  confirmed. 

26.  Certain  other  grants  declared  valid. 

27.  Grants  on  entries  extending  into  two 

or  more  counties,  coafimied, 

28.  Mistakes  of  surveyor  and  secretarj-, 

how  corrected.  Application  to  he 
made  in  tluree  years  after  date  of 
grant, 

29.  Persons  aggrieved  by  issuing  of  pa- 

tents, how  to  proceed. 

30.  Proceedings  and  judgment  of  court  in 

such  cases.  Copy  of  proceedings 
vacating  gi"ant,  to  be  filed  in  secre- 
tary's ofiice. 

31.  Chapter   not  to    apply   to   Cherokee 

lands. 


What  lands 
subject  to  en- 
try,— R.  S.  c. 
42,  s.  1,  2,  3,  8. 
—1846,  c.  36. 
In  what  cases, 
land  covered 
by  nav.  waters 
may  be  enter- 
ed.—1654,  c. 
21,  s.  1,  2,  8,  4. 


Regulation  of 
line  on  water. 


Price  of  such 
land. 

Owners  of 
wharves  on 
such  land  may 
enter  it. 


Lands  covered 
by  lake  water, 
not  to  be  en- 
tered. 


Nor  swamp 
land  of  two 
thousand  acres 
in  one  body. 


Marsh  or 
swamp  land  of 
fifty  acres,  eu- 


1.  All  vacant  and  unappropriated  lands  belonging  to  the 
State,  sliall  be  subject  to  entry  by  any  citizen  thereof,  in  the 
manner  hereinafter  provided,  except :  — 

(1.)  Lands  covered  by  navigable  waters.  Provided,  how- 
ever, that  persons  owning  land  on  any  navigable  sound,  river, 
creek,  or  arm  of  the  sea,  for  the  purpose  of  erecting  wharves 
on  the  side  of  the  deep  water  thereof,  next  to  their  lands,  may 
make  entries  of  the  lands  covered  by  water,  adjacent  to  their 
own,  as  far  as  the  deep  water  of  such  sound,  river,  creek,  or 
arm  of  the  sea,  and  obtain  title  as  in  other  cases.  But  persons 
making  such  enti-ies  shall  be  confined  to  straight  lines,  includ- 
ing only  the  fronts  of  their  own  tracts,  and  shall  in  no  respect 
obstruct  or  impair  navigation. 

And  when  any  such  entry  shall  be  made  in  front  of  the 
lands  in  any  incorporated  town,  the  town  corporation  shall 
regulate  the  line  on  deep  water,  to  which  entries  may  be  made. 

And  for  all  lands  thus  entered,  there  shall  be  paid  into  the 
ti'easury  the  sum  of  one  dollar  per  acre. 

Also,  when  any  person  shall  have  erected  a  wdiarf  on  public 
lands  of  the  description  aforesaid,  before  the  passage  of  this 
section,  such  person  shall  have  liberty  to  enter  said  land,  in- 
cluding his  wharf,  under  the  restrictions,  and  upon  the  terms 
above  set  forth. 

(2.)  Lands  covered  by  the  waters  of  any  lake,  or  which, 
though  now  covered,  may  hereafter  be  gained  therefrom  by  the 
recession,  draining,  or  diminution  of  such  waters,  or  have  been 
so  gained  heretofore,  and  not  lawfully  entered. 

(3.)  Marsh  or  swamp  land,  where  the  quantity  of  land  in 
any  one  marsh  or  swamp  exceeds  two  thousand  acres,  or 
where,  if  of  less  quantity,  the  same  has  been  surveyed  by  the 
State,  or  by  the  president  and  directors  of  the  literary  fund  of 
North  Carolina,  with  a  view  to  draining  and  reclaiming  the 
same. 

(4.)  Provided,  that  marsh  or  swamp  lands,  unsurveyed  as 
aforesaid,  not  exceeding  fifty  acres  in  one  body,  though  lying 


Chap.  42.]  entries  and  grants.  263 

within  a  marsh  or  swamp  of  a  greater  number  of  acres  than  tered  in  certain 
two  thousand,  may  be  entered,  when  the  same  shall  be  situ-  '^'''^'^'' 
ated  altogether  between  the  lines  of  tracts  heretofore  granted.    Entries  and 

2.  Every  entry  made,  and  every  grant  issued,  for  any  lands  grants  not 
not  herein  authorized  to  be  entered  or  granted,  shall  be  void.      Void.— R.  s.  c. 

3.  The  court  of  pleas  and  quarter-sessions  may,  when  they  ^2,  «•  1,  f 

,  .^  ■,,  '  .  .  •'.'-,.•'   Kntry-takers 

deem  it  necessary,  elect  one  person  to  receive  entries  ot  claims  and  surveyors 
for  lands  within  the   county;  and  shall  also   elect  not  more  «PPoii«ed.—  K. 
than  two  persons,  properly  qualified,  to  be  surveyors  of  lands    ••-'•• 
within  the  same;  and  any  person  elected  shall  hold  his  office 
for  four  years. 

4.  Where  a  vacancy  exists  in  the  ofHce  of  entry-taker,  the  'ftliere  a  vacau- 
clerk  of  the  court  of  pleas  and  quarter-sessions   shall  act  as  county  court 
entry-taker,  until  such  vacancy  be  filled  by  a  regular  appoint-  to  act  as  entry- 
ment;  shall  take  charge  of  the  books  belonging  to  the  office;  c.-^i'V.  5'. 
discharge  all  the  duties  and  receive  the  emoluments;  and  shall 

be  subject  to  the  rules,  regulations,  and  penalties  prescribed  by 
law  for  entry-takers. 

5.  Every  surveyor  shall  enter  into  bond  in  the  sum  of  four  Bonds  of  sur- 
thousand  dollars,  and  every  entry -taker  into  bond  in  the  sum  ^take'rsf  1"^ 
of  two  thousand  dollars,  payable  to  the  State  of  North  Caro-  Entry-t.aiier  to 
Una,  with  sufficient  security,  for  the  faithful  discharge  of  the  gourttouse!— 
duties  of  his  office.  And  the  entry-taker  shall  keep  his  office  R.  S.c. 42, s.G; 
at  the  court  house  of  his  county,  or  within  one  mile  thereof,  on  ^^^^'  ®'  ^^' 
pain  of  forfeiting  one  hundred  dollars  to  the  use  of  the  county, 

to  be  sued  for  by  the  county  solicitor. 

6.  Every  surveyor  may  appoint  deputies,  who   shall,  pre- Surveyors  may 
vious  to  entering  on  the  duties  of  their  olfice,  be  qualified  in  a  "les.— r.'^sJ'c." 
similar  manner  with  the  sarveyor;  and  the  surveyor  making  ^a,  s.  7. 
such  appointment  shall  be  liable  for  the  conduct  of  such  depu- 
ties, as  for  his  own  conduct  in  office. 

7.  Twelve  and  a  half  cents  shall  be  paid  to  the  treasurer  for  r'nce  at  yiiich 
every  acre  of  land  that  may  be  entered.     Provided,  that  no  entered.— R.  S. 
person  shall  enter   more  than  one  hundred  acres,  within  any  >=•  ^2'  s-  ^■ 
one  year,  at  that  price ;  and   if  any  person   shall  enter  more 

than  one  hundred  acres,  in  the  same  survey,  or  in  any  one 
year,  he  shall  pay  fifteen  cents  for  every  acre  he  may  enter. 

8.  All  entries  of  land,  made  in  the  course  of  any  one  year,  Wlien  to  be 
shall,  in  every  event,  be  paid  for  on  or  before  the  thirty-first '"" 

day  of  December,  which  shall  happen  in  the  second  year  there- 
after ;  and  all  entries  of  land,  not  paid  for  agreeable  to  this 
section,  shall  become  null  and  void,  and   may  be  entered  by 
any   other  person.      Provided,  however,  that  all  persons  who  Time  of  pay- 
have  entered  vacant  lands  and  paid  for  the  same,  since  the  first  en'jriescx-'  " 
day  of  January,  one  thousand  eight  hundred  and  forty,  shall  tended.— 1854, 
have  until  the  first  day  of  January,  one  thousand  eight  hun-  "'     '  ^"  '  " 
drcd  and  fifty-seven  to  perfect  their  titles  to  the  same  by  grant; 
and  all  persons  who  have  entered  lands  according  to  law,  since 
the  first  day  of  January,  one  thousand  eight  hundred  and  forty- 
five,  and  have  not  paid  for  the  same,  shall  have  until  tiie  first 
day  of  January,  one  thousand  eight  hundred  and  fifty-seven  to 


264  ENTRIES   AND    GRANTS.  [ChAP.    42. 

make    payment  and    perfect   their   titles   thereto.       Provided 

Proviso.  ftiriker,  that    nothing    in   this   section    contained  shall  be   so 

construed  as  to  atlect  the  titles  of  persons  who  have  heretofore 

obtained  grants  to  said  lands,  or  the  rights  of  junior  entries,  or 

to  extend  to  the  swamp  lands  of  the  State ;  or  to  extend  to,  or 

embrace  any  entry  of  more  than  six  hundred  and  forty  acres. 

On  failure  to         9.    Whenever  an  entry  of  land  shall  be  made  in  any  entry- 

pny  the  price,    taker's  ottice,  and  the  enterer  shall  fail  to  pay  the  price  for  the 

subsequent  en-  -ii  •       xi        x-  r      -^     i    u       i  ^  '  i 

terer entitled— same,  Within  the  time  limited  by  law,  any  person  who  may 
K.S.c.42,s.ii.  have  made  a  subsequent  eiitfy  for  the  same  laud,  may  pay  the 

price  and  have  a  grant. 
In  case  of  10.    No  lands  entered    on  the    books    of   the    entry-takers, 

ptfrson^not^to  ^'^^  entry  of  which  shall  be  sufiered  to  lapse  by  non-payment 
reenter  withiu  of  the  price  thereof,  shall  be  reentered  within  one  year  after  the 
S^c-'ir's!!!^'  ^"^^  ^^  which  such  entry  shall  lapse,  by  the  person  in  whose 

name  such  entry  was -made,  but  such  reentry  shall  be  void. 

Entries,  how  11.    The    claimant    of  land    shall    produce   to    the    cntry- 

ra^'i^suer— "  ^^"^^^  a  writing,  signed  by  such  claimant,  setting  forth  where 

B.  s.  c.  42,  s.     the  land  is  situated,  the  nearest  watercourse,  mountains,  and 

^^'  remarkable    places,   and   such  watercoiirses    and    remarkable 

places  as  may  be  therein,  the  natural  boundaries,  and  the  lines 

of  any  other  person,  if  any,  which  divide  it  from  other  lands; 

and  every  such  writing  shall  be  on  one  quarter  sheet  of  paper 

at  least,  and  be  indorsed  by  the  entry-taker  with  the  name  of 

the  claimant,  the  number  of  acres  claimed,  and  date  of  the 

entry ;  and  a  copy  thereof  shall   be   entered  in   a  book,  well 

bound,  and  ruled  with  a  large  margin   into   spaces  of  equal 

distance;  each  space  to  contain  one  entry  only,  and  every  entry 

to  be  made  in  the  order  of  time  in  which  it  shall  be  received, 

and  numbered  in  the  margin  ;  and  the  entry-taker  shall  deliver 

to  the  party  a  copy  of  the  entry  with  its  proper  number,  and  a 

warrant  to   the  surveyor  to  survey  the  same ;  which  warrant 

shall  contain  a  copy  of  the  entry,  with  its  number  and  date, 

and  shall  be  delivered  to  the  surveyor  in  the  order  of  time,  in 

which  the  entry  was  made. 

Surveys,  how        12.    Every  county  surveyoi",  upon  receiving  the  copy  of  the 

made  ami  re-  i  ii  c  ri-  c  ^         t         ii 

turned.  entry  and  order  ot  survey  lor  any  claim  ot  lands,  shall,  as  soon 

as  may  be,  lay  off  and  survey  the  same,  agreeable  to  this  chap- 
ter; and  make  thereof  two  fair  plats,  the  scale  whereof  shall 
be  mentioned  on  such  plats;  and  shall  set  down  in  words  the 
beginning,  angles,  distances,  marks,  and  watercourses,  and 
other  remarkable  places  crossed  or  touched  by  or  near  to  the 
lines  of  such  lands,  and  also  the  quantity  of  acres ;  and  land 
lying  on  any  navigable  water  shall  be  surveyed  in  such  man- 
ner, that  the  water  shall  form  one  side  of  the  survey,  and  tlie 
land  be  laid  off  back  from  the  water;  and  he  shall  transmit  the  - 
plats  to  the  oifice  of  the  secretary  of  State,  or  deliver  them  to 
the  claimant,  within  one  year,  together  with  the  warrant  or 
order  of  survey;  one  of  which,  witli  the  warrant,  shall  be  filed 
np^^ohitedTnT  ^y  *''®  secretary,  and  the  other  annexed  to  the  grant;  and  no 
Bw'orn.  survey  shall  be  made  without  chain  carriers,  who  shall  actually 


Chap.  42.]  entries  and  grants.  265 

measure  the  land  surveyed,  and  shall  be  paid  by  the  party  for 
whom  the  survey  shall  be  made ;  and  such  chain  carriers  sliall 
be  sworn  to  measure  justly  and  truly,  and  to  deliver  a  true 
account  thereof  to   the  surveyor,  which  oath  the   surveyor  is 
empowered  and  required  to    administer.    Provided,  however,  Special  sur- 
that  when  the  ofRce  of  county  surveyor  is  vacant,  the  county  appo[i',tc.i.— R. 
court  may  appoint  a  special  surveyor  to  survey  any  lands  that  S.  c.  42,  s.  14. 
may  be  entered;  and  the  plats  and  certificates  of  such  special  ^gie  c'.ss.  ' 
surveyor,  accompanied  by  a  copy  of  tlie  order  of  the  county 
court  appointing  him,  shall   be  deemed  and  held  valid,  as  if 
done  by  a  county  surveyor  duly  elected. 

1-3.    The  surveyor  shall  survey  all  entries  of  land  according  Surveys  to  be 
to  the  priority  of  such  entry,  paying  due  respect  to  the  number  priority  of  en- 
of  each  warrant ;  and  every  grant  obtained  by  any  subsequent  ''7'~?;  ^'  "' 
entry,  otherwise  than  is  by  this  chapter  directed,  shall  be  void.     ' 
Provided,  nevertheless,  that  nothing  herein  contained  shall  be 
construed  to  prevent  any  person  who  shall  make  a  subsequent 
entry  from  surveying  and  obtaining  a  grant,  as  the  law  directs, 
for  all  such  surplus  land  as  shall  remain,  after  the  enterer  of 
such  land  hath  surveyed  his  entry  as  aforesaid. 

14.  When  any  person  shall  duly  make  an  entry  of  lands '^'>"'^"t  0/ 
which  shall  not  have  become  void  by  lapse  of  time,  and  upon  dupifrat?may 
which  the  entry-taker  shall  issue  his  warrant  of  survey,  and  the  he  issued.— R. 
same  be  lost  by  accident,  the  entry-taker,  on  due  proof  being    '   '    '"" 
made  to  his  satisfaction,  by  affidavit  of  the  claimant  or  the 
surveyor  or  deputy-surveyor,  may  issue  a  duplicate  warrant  of 

survey,  of  the  same  tenor  and  date,  taking  care  to  set  forth,  on 
the  face  of  said  warrant,  that  the  same  is  a  duplicate  ;  in  which 
case  such  warrant  shall  be  as  valid  as  the  original. 

15.  In  all  cases  where  an  entry  shall  be  made,  and  the  entry-  On  dcntii,  &c., 
taker  shall  die  or  resign  before  a  warrant  shall  be  issued  there-  s„cG'r\o\isue 
upon,  his  successor  shall  issue  a  warrant.  warrants.— R. 

16.  If  any  entry-taker  shall  desire  to  make  an  entry  in  his  EiitrV-taiier^s'^' 
own  name,  the  same  shall  be  made  in  its  proper  place,  before  iiowtomake 
a  justice  of  the  peace  of  the  county,  not  being  a  surveyor  or  thenisfcivos.— 
assistant;  which    entry  the  justice    shall  return   to   the   next  R-  s.  c.  42,  s. 
county  court,  who  shall  insert  it;  and  every  entry  made  by  or     ' 

for  such  entry-taker,  in  any  other  manner,  shall  be  void. 

17.  When  a  county  surveyor  shall  wish  to  have  lands  sur-  Surveyors, how 
veyed  in  the  county  where  he  acts  as  principal  surveyor,  for  the  miuic  (i,r"ti,^an! 
purpose  of  obtaining  a  grant,  the  county  court  of  said  county  selves.— R.  S. 
shall  appoint  some  person  to  make  the  survey,  and  the  entry- ''^  *"' ^"     ' 
taker  shall  direct  his  warrant  of  survey  to  such  jDcrson  ;  and  all 
certificates,  surveys,  and  plats  of  the  same  shall  be  made  under 

the  same  regulations  as  prescribe  the  duty  of  the  county  sur- 
veyor in  similar  cases. 

18.  Every  entry-taker  shall  make  return  to  the  secretary  of  Entry-takers  to 
State,  annually,  on  the  first  day  of  December,  of  all  lands  en- rciurnstosec'r. 
tered  with  hitn,  under  a  penalty  of  two  hundred  dollars.  u.  s.c.42,s.20. 

19.  The  secretary  of  State  shall  furnish  the  attorney-general,  I'enaitv  for 

.  •  j_  r  ii  •  1.1!  -WT    1  4.       failure,  how  rs- 

at  every  sprmg  term  ol  the  superior  court  ot    v\  ake  county, 
23 


266  ENTRIES   AND    GRANTS.  [ChAP.  42. 

covered.— E.  S.  with  a  certificate  of  failure  in  every  case  where  any  entry -taker 
c.  4,s.  2.       shall  fail  to  make  return  agreeable  to  law ;  and  the  attorney- 
general  shall  move  for  judgment  against  such  entry-taker  and 
his  sureties,  and  the  court  shall  give  judgment  accordingly. 
Pubiiotreas'r        20.    The  public  treasurer  shall  receive    the  money  for  va- 
try  money.—    cant  and  unappropriated  lands,  upon  the  presentation  to  him 
RS.  c.  42,  s.     of  ^i^g   certificate  of  the  secretary  of  State,  setting  forth  the 
number  and  date  of  the  entry,  and  quantity  of  acres  found 
by  the  surveyor  to  be  vacant,  as  the  same  may  appear  by  the 
returns  made  to  him  from  the  surveyor  or  entry-taker,  or  from 
the  entry-taker's  warrant,  or  the  plats  of  survey. 
SiThat  clrtifl-      21.    No  grant  shall  issue  on  the  treasurer's  receipt  for  the 
cates.—R.  S.  c.  money ;  but   the  comptroller  shall  make    out   and  deliver  to 
42,  s.  23.  ^|jg  secretary   of  State  a  certificate,  conformable  to  each  re- 

ceipt by  him  countersigned,  on  which  the  secretary  shall  issue 
the  grant. 
^Th^^Tdl      ^^'    The  secretary,  on  application  of  claimants,  shall  make 
out  grants  for  all  surveys  returned  to   his  office,  which  grants 
shall  be  authenticated  by  the  governor,  countersigned  by  the 
secretary  and  recorded  in  his  olfice.     The  date  of  the  entry 
shall  be  inserted  in  every  grant,  and  no  grant  shall  issue  upon 
any  survey,  unless  the  same  be  signed  by  the  surveyor  of  the 
county ;  and  every  person  obtaining  a  grant  for  lands  shall, 
within  two  years  after  such  grant  shall  be  perfected  as  afore- 
Aii  grants  to  be  said,  cause  the  same  to  be  registered   in  the  county  where 
r  gis  16  .        ^j^^  j^^^^  shall  lie ;  and  any  person   may  cause   to    be  there 
Copies  may  be;  registered  any  certified  copy  of  a  grant  from  the  office  of  the 
S.°c!i42  S.24.    secretary  of  State,  which  shall  have  the  same  effect  as  if  the 

original  had  been  registered. 
How  to  issue         23.    In  casc  of  the  death  of  any  person    having  made  an 
terer.— R.  S.  c.  entry  of  lands,  pending  the  same   or  before  making  out  the 
42,  S.25.  grant,  the  secretary  shall  issue  the  grant  in  the  name  of  the 

decedent ;  and  those  interested,  as  heirs  at  law,  devisees,  ten- 
ants in  dower,  by  the  courtesy,  or   otherwise,  shall  have  the 
same  estate  as  if  the  land  had  been  granted  during  the  life 
of  the  decedent. 
Seal  of  grant         24.    In  all  cascs  where  the  seal  annexed  to  a  grant  is  lost 
newed!— K?s!'  or  destroyed,  the  governor  may,  on  the  certificate  of  the  secre- 
c.  42,  s.  26.       tary  of  State  that  the  grant  was    fairly  obtained,  cause  the 

seal  of  the  State  to  be  affixed  thereto. 
Certain  grants       25.    Grants  of  land  made  by  the  State  to  surveyors  and 
ed' to°suiTey-""  deputy-surveyors,  prior  to  the  first  day  of  January,  one  thou- 
ora,  &c.,  con-    sand  eight  hundred  and  twenty-nine,  upon  surveys,  plats,  and 
e.'«'s."2r.       certificates  of  the  same,  made  by  them  for  themselves  ri^spcct- 
ively,  without  other  illegality,  and  without  fraud  or  parliality, 
the  certificates  in  all  cases  being  signed  by  the  principal  sur- 
veyor, are  confirmed  and  declared  to  be  good  and  valid. 
Certain  otlier        26.    All  grants  issued  by  the  secretary  of  State,  previous  to 

grants  declnr-    ,,  '-'..  i'ij_i  iiij  x 

ed  valid.— R.     the  year  one  thousand  eight  hundred  and  twenty,  on  surveys 
S.'c.  42,  s.  28.   made  fairly    and  without  fraud,  and  signed  by  the  deputy- 
surveyor  only,  shall  be  good  and  elTectual  to  pass  all  the  right 


Chap.  42.]  entries  and  grants  267 

of  the  State  in  and  to  said  land,  in  as  full  and  ample  a  man- 
ner as  if  such  returns  bad  been  made  in  due  form.  Provided, 
nevertheless,  that  nothing  herein  contained  shall  afiect  any 
entries  made,  or  grants  obtained  on  legal  returns  for  such 
lands,  previous  to  the  year  one  thousand  eight  hundred  and 
twenty-nine. 

27.  Whereas,  many  citizens  of  the  State,  on  making  entries  of  Grants  on  en- 
lands  near  the  lines  of  the  county  wherein  they  reside,  either  ?;'j'^^^j«^';^'«J|.'''"g 
for  want  of  proper  knowledge  of  the  land  laws  of  the  State,  more  counties 
or  not  knowing  the  county  lines,  have  frequently  made  entries  s""^™'^^'';^!'' 
and  extended  their  surveys  on  such  entries  into  other  counties 

than  those  wherein  they  were  made,  and  obtained  grants  on 
the  same  ;  and  whereas,  doubts  have  existed  with  respect  to 
the  validity  of  the  titles  to  lands  situated  as  aforesaid,  so  far 
as  they  extend  into  other  counties  than  those  where  the  entries 
were  made  ;  for  remedy  whereof,  Be  it  enacted,  That  all  grants 
issued  on  entries  made  for  lands  situated  as  aforesaid,  when 
the  money  has  been  paid  into  the  public  treasury,  shall  be 
good  and  valid  against  any  entries  hereafter  made  or  grants 
issued  thereon. 

28.  Whenever  there  may  be  an    error  by  the  surveyor  in  Mistakes  of 

,        .  ,.  ,    ,,  .-r       ,      c       ±\  I         '         a:         sm-vevor  .inU 

plattmg  or  makmg  out  the  certmcate  tor  the  secrelary  s  oilice,  secretary,  how 
or  the  secretary  shall  mistake  in  making  out  the  courses  agree-  corrected, 
able  to  said  returns,  or  misname  the  claimant,  or  make  other 
mistake,  so  as  such  claimant  shall  be  injured  thereby,  the 
claimant  may  prefer  a  petition  to  the  court  of  pleas  and  quar- 
ter-sessions, or  the  superior  court  of  the  county  in  which  the 
land  lies,  setting  forth  the  injury  which  he  might  sustain  in 
consequence  of  such  error  or  mistake,  with  all  the  matters  and 
things  relative  thereto ;  and  the  said  court,  (seven  justices  be- 
ing present,  if  the  petition  be  in  the  court  of  pleas  and  quarter- 
sessions,)  may  hear  testimony  respecting  the  truth  of  the  alle- 
gations set  forth  in  the  petition ;  and  if  it  shall  appear  by  said 
testimony,  from  the  return  of  the  surveyor  or  the  error  of  the 
secretary,  that  the  patentee  is  liable  to  be  injured  thereby,  the 
court  shall  direct  the  clerk  to  certify  the  facts  to  the  secretary 
of  State,  who  shall  file  the  same  in  his  office,  and  correct  the 
error  in  the  patent,  and  likewise  in  the  records  of  his  office. 
The  costs  of  such  suit  shall  be  paid  by  the  petitioner,  except 
when  any  person  may  have  made  himself  a  party  to  prevent 
the  prayer  of  the  petitioner  being  granted,  in  which  case  the 
costs  shall  be  paid  as  the  court  may  decree.  The  benefits 
granted  by  this  section  to  the  patentees  of  land  shall  be  ex- 
tended in  all  cases  to  persons  claiming  by,  from,  or  under  their 
grants,  by  descent,  devise,  or  purchase.  When  any  error  is 
ordered  to  be  rectified,  and  the  same  has  been  carried  through 
from  the  grant  into  mesne  conveyances,  the  court  shall  direct 
a  copy  of  the  order  to  be  recorded  in  the  register's  books  of 
the  county.  Provided,  that  no  such  petition  shall  be  brought,  ,^'^^"7^  wiiilrn 
but  within  three  years  after  the  date  of  the  patent;  and  if  three  ycnr*  at- 
brought  after  that  time,  the  court  shall  dismiss  the  same,  and  'er  date  of 


268 


grant.— R.  S.  c. 
42,  s.  30. 


Persons  ag- 
grieved by  is- 
suing of  pa- 
tents, how  to 
proceed. — R. 
S.  c.  42,  s.  31. 


Proceedings 
and  judgment 
ofcourt  jnsuch 


Copy  of  pro- 
ceedings vacat- 
ing grant,  to  be 
filed  in  sec'ys 
office.— R.  S. 
c.  42,  s.  32. 

Cliapter  not 
to  apply  to 
Cherokee 
lands.— R.  S.  c. 
42,  s.  36. 


ENTRIES    AND    GRANTS.  [ChAP.   42. 

all  proceedings  had  thereon  shall  be  deemed  null  and  of  no 
effect.  And  provided  a/sn,  that  nothing  herein  contained  shall 
affect  the  rights  or  interests  of  any  person  claiming  under  a 
patent  issued  between  the  period  of  the  date  of  the  grant 
alleged  to  be  erroneous,  and  the  time  of  tiling  the  petition, 
unless  such  person  shall  have  had  due  notice  of  the  tiling  of 
the  petition,  by  service  of  a  copy  thereof,  and  an  opportunity 
of  defending  his  rights  before  the  court  according  to  the  course 
of  the  common  law. 

29.  When  any  person  claiming  title  to  lands  under  a  grant 
or  patent  from  the  king  of  Great  Britain,  any  of  tlie  lords  pro- 
prietors of  North  Carolina,  or  from  the  State  of  North  Caro- 
lina, shall  consider  himself  aggrieved  by  any  grant  or  patent 
issued  or  made,  since  the  fourth  day  of  July,  one  thousand 
seven  hundred  and  seventy-six,  to  any  other  person,  against 
law  or  obtained  by  false  suggestions,  surprise,  or  fraud,  the 
person  aggrieved  may  file  his  petition  in  the  superior  court  of 
law  for  the  county  in  which  such  land  may  be,  together  with 
an  authenticated  copy  of  said  grant  or  patent,  which  petition 
shall  briefly  state  the  grounds  whereon  such  patent  should  be 
repealed  and  vacated;  whereupon  a  writ  of  scire  facias  shall 
issue  to  the  grantee,  patentee,  or  the  person,  owner,  or  claimant 
under  such  grant  or  patent,  requiring  such  grantee,  patentee, 
or  owner,  to  show  cause  why  the  same  shall  not  be  repealed 
and  vacated. 

30.  The  writ  of  scire  facias  shall  be  considered  the  lead- 
ing process,  and  all  the  proceedings  thereon  shall  conform  to 
the  general  rules  of  practice  in  such  cases,  except  where  the 
scire  facias  cannot  be  made  known  to  the  defendant,  when  the 
court  shall  order  publication  in  one  or  more  papers  for  such 
time  as  they  may  think  proper.  If,  upon  verdict  or  demurrer, 
the  court  believe  that  the  patent  or  grant  was  made  against 
law,  or  obtained  by  fraud,  surprise,  or  upon  untrue  sugges- 
tions, they  may  vacate  the  same  ;  and  a  copy  of  such  judg- 
ment, after  being  recorded  at  large,  shall  be  filed  by  the 
petitioner  in  the  secretary's  office,  where  it  shall  be  recorded 
in  a  book  kept  for  that  purpose  ;  and  the  secretary  shall  note 
in  the  margin  of  the  original  record  of  the  grant  the  entry  of 
the  judgment,  with  a  reference  to  the  record  in  his  office. 

31.  Nothing  contained  in  this  chapter  shall  apply  to  the 
lands  commonly  known  as,  and  cafied  Cherokee  lands,  but  the 
said  lands  are  to  be  disposed  of  and  regulated  according  to 
the  laws  in  relation  thereto. 


Sect.  1.  (1.)  Grants  for  lands  not  subjeet  to  entry,  13  Ire.  312,  4  P.  &  B.  328,  1  Mur. 
162;  covered  111/  water,  7  Ire.  139,  1  Hay.  489,  2  Hawks.  22G.     (2.)  1  Jones,  234. 

Sect.  3.  Jinlry-lnker  cannot  appoint  dejmly,  3  Ire.  Eq.  593.  Effect  of  entry  in  eoujto, 
2  Ire.  Eq.  31'2. 

Skct.  11.  /rre/julnr  entry,  2  Slur.  375;  description  of  land,  1  D.  &  B.  Eq.  869. 

Sect.  21.  Grant  not  collaterally  impeached.  Bus.  407,  13  Ire.  312.  J'riorilu,  3  Mur. 
639,  1  Hay.  176. 

Sect.  22.  Effect  of  time  of  registration,  9  Ire.  333,  3  Mur.  21. 


Chap.  43.] 


269 


Skct.  27.  1  Dev.  Eq.  483. 

Sect.  29.  4  Dev.  495,  1  lb.  481,  lb.  300,  2  D.  &  B.  246,  4  lb.  533;  purchaser  frcnn 
l^rtmtce,  1  Dev.  427,  2  Mur.  876,  3  lb.  319;  tio  limitation  of  time,  3  Mur.  322;  effect  of 
judgment  on  scire  facias,  3  D.  &  B.  14. 


CHAPTER    43. 


ESTATES. 


Section 

1.  Estates  in  tail  converted  into  fee-sim- 

ple. 

2.  In  joint  tenancy,  the  share  of  deceased 

cotenaut  not  to  vest    in    survivor. 
Proviso  as  to  partners  in  trade. 

3.  Certain  contingent  limitations  in  deeds 

or  wills,  how  construed.    If  made 
since  15th  January,  1828. 

4.  Infant  unborn,  may  take  by  deed,  &c. 

5.  Limitation  to  the  heirs  of  a  living  per- 

son, to  be,  to  his  children. 

6.  In  conveyances   to  uses,    possession 

transferred  to  use  without  livery. 


Section 

7.  Grantees  of  reversions  to  have  such 

rights  against   tenants   for    life    or 
years,  as  grantors  had, 

8.  And  such  tenants  to  have  same  rights 

against    grantees  of  reversions,  as 
against  the  grantors. 

9.  Buying  and  selling  pretended  rights 

or  titles,  prohibited. 
10.  CoUateriil  and  certain  other  warran- 
ties made  void.    To  stand  as  cove- 
nants only. 


1.  Evert  person  seized  of  an  estate  in  tail,  shall  be  deemed  Estates  in  tail 
to  be  seized  of  the  same  in  fee-simple ;  and  all  sales  and  con-  f°e°™^pie  i!!'° 
veyances,  made  bonajhle  and  for  valuable  consideration,  since  R.  S.c.  43,  s.  i. 
the  first  day   of  January,  in  the  year  of  our  Lord  one  thou- 
sand seven  hundred  and  seventy-seven,  by  any  tenant  in  tail 

in  actual  possession  of  any  real  estate,  where  such  estate  hath 
been  conveyed  in  fee-simple,  shall  be  good  and  effectual  in 
law  to  bar  any  tenant  in  tail  and  in  remainder,  of  and  from 
all  claim,  action,  and  right  of  entry  whatsoever,  of,  in,  and  to 
such  entailed  estate,  against  any  purchaser,  his  heirs  or  as- 
signs, now  in  actual  possession  of  such  estate,  in  the  same 
manner  as  if  such  tenant  in  tail  had  possessed  the  same  in  fee- 
simple. 

2.  In  all  estates,  real  or  personal,  held  in  joint  tenancy,  the  In  joint  tenan- 
part  or  share  of  any  tenant  dying  shall  not  descend  or  go  to  jecea^ed'co^  °' 
the   surviving  tenant,   but   shall  descend  or  be  vested  in  the  tenant  not  to 
heirs,   executors,  or  administrators,  or  assigns  respectively  of  \l^l™  ^"^' 
the  tenant  so   dying,  in  the  same  manner  as  estates  held  by 
tenancy  in  common.     Provided  always,  that  estates  held  in  proviso  as  to 
joint  tenancy  for  the  purpose  of  carrying  on  and  promoting  Pl""5"f^jj'"g 
trade  and   commerce,   or   any  useful   work    or   manufacture,  43,  s.  2. 
established  and  pursued  mth  a  view  of  profit  to  the  parties 

therein  concerned,  shall  be  vested  in  the  surviving  partner,  in 
order  to  enable  him  to  settle  and  adjust  the  partnership  busi- 
ness, or  pay  oft'  the  debts  which  may  have  been  contracted  in 
pursuit  of  the  said  joint  business  ;  but  as  soon  as  the  same 
shall  be  effected,  the  survivor  shall  account  with,  and  pay,  and 
23* 


270  ESTATES.  [Chap.  43. 

deliver  to  the  heirs,  executors,  administrators,  and  assigns 
respectively  of  sncli  deceased  partner,  all  such  part,  share,  and 
Slims  of  money  as  he  may  be  entitled  to  by  virtue  of  the 
original  agreement,  if  any,  or  according  to  his  share  or  part  in 
the  joint  concern,  in  the  same  manner  as  partnership  stock  is 
usually  settled  between  joint  merchants  and  the  representa- 
tives of  their  deceased  partners. 
Certain  con-  3.  Every  contingent  limitation  in  any  deed  or  will,  made 

tions  in  deeds    to  depend    upon   the    dying  of   any  person  without  heir   or 
or  wills,  how     hcirs   of  the  body,  or  without  issue  or  issue  of  the  body,  or 
'        without  children,  or  offspring,  or  descendant,  or  other  relative, 
shall  be  held  and  interpreted  a  limitation  to  take  ell'ect,  when 
such  person  shall  die,  not  having  such  heir,  or  issue,  or  child, 
or  offsjiring,  or  descendant,  or  other  relative  (as  the  case  may 
be)   living  at  the  time  of  his  death,  or  born  to  him  within  ten 
lunar  months  thereafter,  unless  the  intention  of  such  limitation 
be  otherwise,  and  expressly  and  plainly  declared  in  the  face  of 
If m.ade  since    the  deed  or  will  creating  it.     Provided,  that  the  rule  of  con- 
— R  "'s"c  43"*'  straction  contained  in  this  section  shall  not  extend  to  any  deed 
s.  3.  '    or  will  made  and  executed  before  the  fifteenth  of  January,  one 

thousand  eight  hundred  and  twenty-eight. 
Infant,  unborn,      4.  An  infant  unborn,  but  in  esse,  shall  be  deemed  a  person 
dee'd'&a''^      capable  of  taking  by  deed  or  other  writing,  any  estate  what- 
ever, in  the  same  manner  as  if  he  were  born. 
Limitation  to      5_    j^j^y  limitation  by  deed,  will,  or  other  writing,  to  the  heirs  ■ 
living  person,    of  a  living  person,  shall  be  construed  to  be  to  the  children  of  such 
*hn'°'^"'       person,  unless  a  contrary  intention  appear  by  the  deed  or  will. 
In  convey-  6.    By  deed  of  bargain  and  sale,  or.  by  deeds  of  lease  and 

ances  to  uses,    release,  or  by  covenant  to  stand  seized  to  use,  or  deed  oper- 

possession  .,*'-  i-i  ,  • 

transferred  to    atuig  by  way  of  covenant  to  stand  seized  to  use,  the  possession 
nse  without      Qf  ^[^g  bargainor,  releasor,  or  covenantor  shall  be  deemed  to  be 
c.  43,  s.  4.-27  transferred  to  the  bargainee,  releasee,  or  person  entitled  to  the 
H.  8,  c.  10.       ^^gp^  fgj.  j^],g  estate  or  interest  which  such  person  shall  have  in 
the  use,  as  perfectly  as  if  the  bargainee,  releasee,  or  person  en- 
titled to  the  use  had  been  enfeoflied  at  common  law  with  livery 
of  seizin  of  the  land,  intended  to  be  conveyed  by  such  deed  or 
covenant. 
Grantees  of  re-      7.    Whenever  a  conveyance  shall  be  made  by  any  person, 

versions  to  /-  ••11  xx  x  irx  x 

have  such  01  '^'^y  reversion  in  lands,  rents,  tenements,  or  hereditaments, 
rights  ajiainst    which,  at  the  time  of  such  conveyance,  shall  be  held  by  any 

tenants  for  life       ,1  /.  ,  ri-r  1  xi-i- 

or  years,  as  other  person  ior  a  term  of  hie  or  years,  such  grantee,  his  heirs, 
grantors  had.— executors,  administrators,  and  assigns,  shall  have  the  like  ad- 
~32"h%,c.^34,  vantages  against  the  tenant  for  life,  and  against  the  tenant  for 
s- 1-  ,      years,  his  executors,  administrators,  and  assigns,by  entry  for  non- 

payment of  rent  and  for  doing  of  waste,  and  the  same  benefit 
and  advantage  and  remedies  by  action  for  the  not  performing  of 
other  conditions,  covenants,  or  agreements,  contained  and  ex- 
pressed in  the  indentures,  by  which  such  tenant  for  life  or 
years  hold  the  same  lands,  tenements,  rents,  or  hereditaments, 
against  said  tenant  for  life  or  for  years,  his  executors,  adminis- 
trators, and  assigns,  as  the  grantor  or  lessor  himself  or  his  heirs 
might  have. 


Chap.  44.]  evidence.  271 

8.  Lessees   and  gi-antees   of  lands,   rents,   tenements,   and  And  such  ten- 
hereditaments  for  term  of  years  or  life,  their  executors,  admin-  ""'nVright? 
istrators,  and  assigns,  shall  have  like  action,  advantage,  and  aguinst  gran- 
remedy  against  every  person,  his  heirs  and  assigns,  who  shall '^^^yj^J^ig^injt 
have  any  conveyance  from  any  person  of  the  reversion  of  the  tiie  grantors.— 
same  lands,  rents,  tenements,  and  hereditaments,  so  let  or  any  6.'_32'^'h*^8'^^;. 
parcel  thereof,  for  any  condition,  covenant,  or  agreement  con-  34,  s.  2. 
tained  or  expressed  in  the  indenture  of  their  leases,  as  the  same 

lessees  or  any  of  them  might  and  should  have  had  against  the 
said  lessor  and  grantor,  and  his  heirs. 

9.  No  person  shall  buy,  sell,  or  obtain  any  pretended  right  Buyi^ng  and^^^ 
or  title,  or  take  a  promise  or  covenant  to  have  any  right  or  gd  riglitror"  ' 
title  of  any  person,  in  or  to  any  lands  or  tenements,  (except  tities,^prohibit- 
such  person  as  shall  sell,  covenant,  or  promise  the  same,  or  43;  j.  t'.—'sI'h. 
they  by  whom  they  claim,  have  been  in  possession  of  the  same  -S  c.  9,  s.  2,  i. 
or  of  the  reversion  or  remainder  thereof,  or  taken  the  rents  and 

profits  thereof  one  year  ne.xt  before  the  bargain  made,)  upon  pain 
that  both  he  that  shall  make  any  such  sale,  promise,  or  cove- 
nant, and  the  buyer,  knowing  the  same,  shall  forfeit  the  value 
of  the  said  lands ;  the  one  half  to  the  use  of  the  county  where 
the  lands  are  situated,  the  other  half  to  the  person  suing  for 
the  same.  Provided,  that  any  person  being  in  the  lawful 
possession,  by  taking  the  rents  and  profits  of  any  tenements, 
may  buy  the  pretended  right  of  any  other  person  to  such 
tenements. 

10.  All  collateral  warranties  are  abolished ;  and  all  warran-  *^°'j'^*^™jij™'^ 
ties,  made  by  any  tenant  for  life,  of  lands,  tenements,  or  hered-  ^^u-rantL '"^ 
itaments,  the  same  descending  or   coming  to  any  person  in  ;;?^''^f  ™]'^j;g 
reversion  or  remainder,  shall  be  void.     And  all  such  warranties,  covenautsoniy. 
as  aforesaid,  shall  be  deemed  covenants  only,  and  bind  the --K-^s.^c.  43^s. 
covenantor  in  like  manner  as  other  obligations.  -li  Anne,  c. 

iG,  s.  21. 


Sect.  2.  ainveyance  to  husbnrul  and  wife,  2  D.  &  B.  537,  Bus.  Eq.  286.  'Purchase 
with  pnrtnership  funds,  1  I).  &  B.  Eq.  524. 

Sect.  3.  Wills  before  this  section,  8  Ii-e.  133,  lb.  25,  7  lb.  261,  B  lb.  225,  4  lb.  53,  lb.  57, 
lb.  287,  3  lb.  134,  lb.  200. 

Sect.  10.  Bus.  169;  12  Ire.  123. 


CHAPTER   44. 

EVIDENCE. 


Sectiom 

1.  Evidence  necessary  to  support  title 

under  H.  E.  McCuUoch. 

2.  Grant  or  copy  from  proprietors,  suffi- 

cient evidence  of  title  under  him. 

3.  Law  of  other  States,  what  evidence  of. 


Section 

4.  Printed  statute  book  evidence  of  pri- 

vate acts. 

5.  Otlior  evidence  of  pinvate  acts. 

6.  Copies  from  secretary's  ollicc  of  plats 

of  survey,  good  evidence. 


172 


EVIDENCE. 


[Chap.  44. 


Section 

7.  Administrations,  Sec,  and  relums  of 

administrators  and  executors,  in  oth- 
er States,  liow  certified. 

8.  Records  and  papers  lodged  iu  State 

offices,  proved  by  cojn'. 

9.  Wills  or  deeds  iu  otiier  States,  proved 

by  certified  copies. 
10.  In  suits  on  official  bonds,  and  bonds 
of  executors,  &c.,  evidence  against 
principal,  admissible  against  sure- 
ties. 


Sectios 

11.  Evidence  in  suits,  concerning  lands,  in 

Haywood  and  Henderson. 

12.  Copies  of  wills,  in  the  office  of  secre- 

tiry  of  State,  to  be  evidence. 

13.  Variance  between  execution  and  judg- 

ment, not  to  affect  title  of  property 
sold. 

14.  Deeds  registered  and  lost,  and  the 

registry  also  destroyed,  presumed  to 
have  been  iu  due  foi-m. 


Evidence  nee 
essary  to  sup- 


loch.' 
44,  s, 


In  all  suite,  wherein  it  may  be  necessary  for  either  party 
port  title  under  ^o  prove  title,  by  vu-tue  of  a  grant  or  grants  made  by  the  king 
loch'-R  ^S^'c  °^  ^^^'^^^  Britain  or  Earl  Granville  to  Henry  McCuUoch,  or 
Henry  Eustace  McCulloch,it  shall  be  suflicient  for  such  party, 
in  the  usual  maimer,  to  give  evidence  of  the  grant  or  convey- 
ance from  the  king  of  Great  Britain  or  Earl  Granville  to  the 
said  Henry  McCuUoch,  or  Henry  Eustace  McCuUoch,  and  the 
mesne  conveyances  thereafter,  without  giving  any  evidence  of 
the  deed  or  deeds  of  release,  relinquishment,  or  confirmation  of 
Earl  GranviUe  to  the  said  Henry  McCuUoch,  or  Henry  Eus- 
tace McCuUoch,  or  the  power  or  powers  of  attorney,  by  which 
the  conveyances  from  the  said  Henry  McCuUoch,  or  Henry 
Eustace  McCuUoch,  purport  to  have  been  made. 

2.  In  aU  trials  where  the  titles  of  either  plaintift'  or  defendant 
shall  be  derived  from  Henry  Eustace  McCuUoch,  or  Henry 
McCuUoch,  out  of  their  tracts  number  one  and  three,  it  shaU 
not  be  required  of  such  party  to  produce,  in  support  of  his  title, 
either  the  original  grant  from  the  crown  to  the  proprietors,  or  a 
registered  copy  thereof;  but  in  all  such  cases,  the  grant  or  deed 
executed  by  such  reputed  proprietors,  or  by  his  or  their  lawful 
attorney,  or  a  certified  copy  thereof,  shall  be  deemed  and  held 
sufficient  proof  of  the  title  of  such  proprietors,  in  the  same 
.manner  as  though  the  original  grants  were  produced  in  evi- 
dence. 

3.  In  all  suits,  wherein  it  may  be  necessary  to  produce  in 
evidence  the  law  of  any  of  our  sister  States,  or  of  a  territory  of 
the  United  States,  either  party  may  exhibit  a  copy  of  the  law 
of  such  State  or  territory,  drawn  olf  by  the  secretary  of  State 
of  this  State  from  the  copy  of  the  laws  of  such  State  or  terri- 
tory deposited  in  his  or  the  executive  office  or  State  library, 
certified  under  his  hand  with  the  seal  of  this  State  attached, 
and  he  shall  furnish  said  copy  when  required. 

4.  All  private  acts  passed  by  the  General  Assembly,  and 
of  private  ac"ts.  printed  by  the  printer  of  the  State,  may  be  read  in  evidence  in 
— R.  S.  c.  44,    ^j2  courts,  from  the  printed  statute  book. 


Grant  or  copy, 
from  proprie- 
tors, suflicient 
evidence  of 
title  under  him. 
— K.  S.  c.  44. 
5.  2. 


Law  of  other 
States,  evi- 
dence of. — R. 
S.  c.  44,  s.  3. 


Printed  stat- 
utes evidence 


s.  4. 

Other  evidence 


5.  Any  private  act  published  by  Francis  X.  Martin,  in  his 
-K.^^c!  44,"'  collection  of  private  acts,  or  a  copy  of  any  private  act  certified 
s-  6.           '    by  the  secretary  of  State,  shaU  be  received  in  evidence  in  every 

court. 

6.  Copies  of  the  plats  and  certificates  of  survey,  or  their  ac- 


Copy  of  survey 
from  secretar- 


Chap.  44.]  '  evidence.  273 

comnanvinnf  warrants,  which  may  be  filed  in  the   secretary's  "^''^  office, good 

„*        ^    .^    T    ,        ,.  ,  .  1111  J*    evidence. — K. 

oflicf,  certified  by  nmi  as  true  copies,  shall   be  as  good  evi- s.  c.  m,  s.  6. 
deuce,  in  any  court,  as  the  original. 

7.  When  an  administration  or  letters  testamentary  on  the  Administrn- 

,  ir.  1  11-  ■    \     <  -L      J.  tioi'Si  etc.,  and 

goods  and  chattels  of  any  person  deceased,  being  an  mnabitant  retums  of  ad- 
in  another  State  or  territory,  has  been  granted,  or  a  return  or  "'2' g^f^°Jf„rs 
inventory  of  the  estate  has  been  made,  a  copy  of  the  record  of  i,,  otber  SuitesJ 
administration,  or  of  the  letters  testamentary,  and  a  copy  of  J^™ '^^?rt'fie^i- 
any  inventory  or  return  of  the  effects  of  the  deceased,  after  the  s.  7.' 
same  has  been  granted  or  made,  agreeable  to  the  laws  of  the 
State  where  the  same  has  been  done,  being  properly  certified, 
either  according  to  the  act  of  Congress  passed  in  May,  A.  D. 
one  thousand  seven  hundred  and  ninety,  or  by  the  proper  officer 
of  the  said  State  or  territory,  and  the  further  testimonial  of  the 
governor  that  the  person  certifying  is  the  proper  officer,  shall 
be  allowed  as  evidence  in  the  courts  of  the  State. 

8.  Copies  of  all  official  bonds  or  writings  recorded  or  filed  ,^^^°jfjj„^g4 
as  records  in  any  court,  or  lodged  in  the  office  of  the  governor,  in  state  offices, 
treasurer,  comptroller,  or  secretary  of  State,  shall  be  competent  J^™"^'^^  g,  ^_ 
evidence  as  the  originals,  when  certified  by  the  keeper  of  such  23,  s.  13. 
records  or  writings  under  the  seal  of  office,  when  there  is  such 

seal,  or  under  his  hand  when  there  is  no  such  seal,  unless  the 
court  shall  order  the  production  of  the  original. 

9.  In  cases  where  inhabitants  of  other  States  or  territories,  )J'J|'i°^^  f^l^^^ 
by  will  or  deed,  devise  or  convey  property  situated  in  this  State,  proved  by  ccr- 
and  the  original  will  or  deed  cannot  be  obtained  for  registra-  'j^^^"^  c-Tri'^ 
tion  in  the  county  where  the  land  lies,  or  where  the  property 

shall  be  in  dispute,  a  copy  of  said  will  or  deed,  (after  the  same 
has  been  proved  and  registered  or  deposited,  agi'eeable  to  the 
laws  of  the  State  where  the  persons  died  or  made  the  same,) 
being  properly  certified,  either  according  to  the  act  of  Congi-ess 
aforesaid,  or  by  the  proper  officer  of  the  said  State  or  territory, 
with  the  further  testimonial  of  the  governor  that  the  person 
certifying  is  the  proper  officer,  shall  be  read  as  evidence  in  the 
courts  of  this  State. 

10.  In  actions  brought  upon  the  official  bonds  of  clerks  of  ^5'J°>^^^°°  °®^ 
the   county  or  superior  courts,  clerks  and  masters  in  equity,  bonds  of  e'sec- 
sheriffs,  coroners,  constables,  or  other  public  officers,  and  also  j;^°^^^  fgaintt'" 
upon   the    bonds   of  executors,  administrators,  or  guardians,  principal  ad- 
when  it  may  be  necessary  for  the  plaintiff  to  prove  any  default  ""*^''^'<' 


nst  sure- 


of  the  principal  obligors,  any  receipt  or  acknowledgment  of  ties.— 1844,  c. 
such   obligors,  or  any  other   matter  or  thing  which,  by  law,  ^^'  ^-  ■'• 
would  be  admissible  and  competent  for  or  toward  proving  the 
same  as  against  him,  shall,  in  like  manner,  be  admissible  and 
competent  against  all  or  any  of  his  sureties,  who  may  be  de- 
fendants with  or  without  him  in  said  actions. 

11.    In  all  legal  controversies  touching  lands  in  the  counties  J{^-',''''"f,^,(lp,.n. 
of  Haywood  and  Henderson,  in  which  either  party  shall  claim  ing  u'mds  in 
title  under  any  sale  for  taxes  alleged  to  have  been  due  and  laid,  [J^li^Jerju,,'™' 
in  or  for  the  year  one  thousand  seven  hundred  and  ninety-six,  1542,  c.  cc. 
or  any  preceding  year,  the  recital  contained  in  the  deed  or  as- 


274 


Copies  of  wills, 
in  the  office  of 
secretary, to  be 
evidence. — 
1852,  c.  172. 


Variance  be- 
tween execu- 
tion and  judg- 
ment, not  to 
affect  title  of 
property  sold. 
— 184S,'c.  63. 


Deeds  regis- 
tered and  lost, 
and  the  regis- 
try also  de- 
stroyed, pre- 
sumed to  have 
been  in  due 
form. — 1854,  c. 
17. 


EXECUTIONS.  [Ch.\P.  45. 

.?nrance,  made  by  tlic  sheriff  or  other  officer  conveying  or  assur- 
ing the  same,  of  tlic  taxes  having  been  laid  and  "assessed,  and 
of  the  same  having  remained  due  and  unpaid,  shall  be  held 
and  taken  to  be  primd  facie  evidence  of  the  truth  of  each  and 
every  of  the  matters  so  recited. 

12.  Copies  of  wills  tiled  or  recorded  in  the  ofHce  of  the  sec- 
retary of  State,  attested  by  the  secretary,  may  be  given  in 
evidence  in  any  court,  and  shall  be  taken  as  sufficient  proof  of 
the  devise  of  real  estate,  and  are  declared  good  and  etlcctual  to 
pass  the  estate  therein  devised,  in  the  same  manner  as  if  such 
wills  had  been  duly  proved  and  recorded  in  the  county  court. 

13.  Whenever  property  may  have  been  sold  by  an  officer, 
by  virtue  of  any  execution  or  other  process  commanding  the 
sale  thereof,  no  variance  between  the  execution  and  the  judg- 
ment whereon  the  same  was  issued,  in  the  sum  due,  in  the 
manner  in  which  it  is  due,  or  in  the  time  when  it  is  due,  shall 
invalidate  or  affect  the  title  of  the  purchaser  of  such  property. 

14.  Whenever  it  shall  be  shown,  in  any  judicial  proceeding, 
that  a  deed,  or  conveyance  of  real  estate,  has  been  lost  or 
destroyed,  and  that  the  same  had  been  registered,  and  that  the 
register's  book  containing  the  copy  has  been  destroyed  by  fire 
or  other  accident,  so  that  a  copy  thereof  cannot  be  had,  it  shall 
be  presumed  and  held,  unless  the  contents  be  shown  to  have 
been  otherwise,  that  such  deed  or  conveyance  transferred  an 
estate  in  fee-simple,  if  the  gi-antor  was  entitled  to  such  an 
estate  at  the  time  of  conveyance ;  and  that  it  was  made  upon 
sufficient  consideration. 


Sect.  3.  13  Ire.  114;  11  lb.  57G;  2  lb. 
pari  of  a  sinlule,  3  Hawks,  404. 

Sect.  8.   Nepative  cerlificale,  2  Dov.  15. 
Sect.  13.   13  Ire.  425.     Wlim  plaintiff  i 


346;  2  Dev.  663;  1  Dev.  Ecj.  123.     Title  tio 

Records,  6  Ire.  159. 
1  purckaser,  11  Ire.  288. 


CHAPTER   45. 


EXECUTIONS. 


Section 

1.  Keal  estate  may  be  taken  in  execu- 

tion. 

2.  Executions  to  issue  against  real  and 

personal  estate  ;    latter  to  be  firet 
taken  and  sold. 

3.  Levies  on  leaseholds  of  three  years, 

under  justice's  execution,  returned 
to  court. 

4.  Trust   estates   liable    to    execution. 

I'urcliaser    to   hold   property   dis- 
charged of  trust. 


Section 
6.  The  equity,  and  legal  right  of  redemp- 
tion in  re;J  estate,  liable  to  execu- 
tion. 

6.  Sheriff's  deed  to  recite  the  estate  was 

mortgaged. 

7.  Articles  exempt  from  execution. 

8.  Other  articles  for  housekeepers. 

9.  How  to  bo  assigned. 

10.  Sale  of  e.\cnipt  property  void. 

11.  Levy  not  to  be  made  on  growing  crops 

till  matured. 


Chap.  45.] 


EXECUTIONS. 


275 


Section 

12.  Justice's  execution  levied  on  land,  and 

returned  to  court,  —  proceedings. 

13.  If  not  satisfied,  execution  to  issue  for 

the  balance. 

14.  Lands  and  slaves,   how  and    where 

sold  under  execution.    Proviso,  as 
to  sales  decreed  by  court  of  equity. 

15.  County  court  may  appoint  other  places 

of  sale. 

16.  Notice  to  be  given  of  sales  under  exe- 

cution.     Advertisement  made,  how 
and  for  what  time. 

17.  At  what  hour  sales  to  begin. 

18.  Penalty  for  selling  contraiy  to  law. 

19.  AVhat  to  be  stated  by  officer  returning 

no  sale  for  want  of  bidders.    Penalty 
for  omission. 

20.  Justice's  execution  to  bind  personally 

from  levy  only. 

21.  Sheriff,  &c.,  may  take  bond  for  forth- 

coming of  property  levied  on. 

22.  The  surety  to  be  bailee  of  the  ofhcer, 

by  taking  list  of  property,  &c.   Sales, 


Section 

when  made  under  other  levied  exe- 
cutions. 

23.  OfEcer  how  to  proceed  on  the  bond, 

when  broken. 

24.  Officer  le\'3'ing  justice's  execution  on 

land,  to  notify  defendant  five  days 
before  court.  Otlierwise  court  to 
direct  notice. 

25.  County  court  to  make  allowance  to 

officers  for  keeping  horses,  &c.,  taken 
in  execution. 
20.  Officer  to  state  and  return  his  account. 
To  furnish  debtor  a  copy. 

27.  Purchaser  may  recover  of  defendant 

in  execution,  if  the  title  to  the  tiling 
sold  he  defective. 

28.  Debtor  dying  in  execution,  debt  not 

discharged. 

29.  Clerks  to  issue  execution  in  six  weeks, 

&c.    Penalty  of  §100  for  failure. 

30.  Officers  to  prepare  deeds  for  property 

sold  by  them. 

31.  Costs  on  executions  to  be  paid  to  clerks. 


1.  TuE  houses,  lauds,  and  other  hereditaments  and  real 
estate,  belonging  to  any  person  indebted,  sliall  be  liable  to  and 
chargeable  with  all  just  debts,  duties,  and  demands,  of  what 
nature  or  kind  soever,  owing  by  such  person ;  and  shall  be 
subject  to  the  like  remedies,  proceedings,  and  process  in  any 
court  of  law  or  equity,  for  seizing,  selling,  or  disposing  of  the 
same  towards  the  satisfaction  of  such  debts,  duties,  and  de- 
mands, in  like  manner  as  personal  estates  are  seized,  sold,  or 
disposed  of  in  satisfaction  of  debts. 

2.  All  process  of  execution  shall  issue  against  lands  and 
tenements,  as  well  as  goods  and  chattels ;  and  Avhen  any  such 
execution  shall  come  to  the  sherifl',  he  shall  proceed  to  levy  the 
same  upon  the  goods  and  chattels  of  the  defendant  in  the  first 
instance,  if  any  there  be ;  but  if  to  the  best  of  his  knowledge 
there  be  no  such  goods  or  chattels,  or  not  sufficient  to  answer 
the  plaintiff's  demand,  he  shall  execute  the  same  upon  the 
lands  and  tenements,  to  the  amount  of  the  whole  debt,  or  of 
so  much  as  may  remain  more  than  the  value  of  the  goods  and 
chattels  so  found ;  and  such  lands  and  tenements  shall  be 
liable,  under  the  restrictions  aforesaid,  to  be  sold  to  satisfy  the 
plaintiff's  judgment. 

3.  The  levy,  by  any  constable  or  other  officer,  under  an  ex- 
ecution issued  by  a  justice  of  the  peace,  on  any  leasehold 
estate,  of  three  years'  duration  or  more,  at  the  time  of  such 
levy,  shall  be  returned  to  court  as  levies  on  lands,  and  con- 
demned to  sale,  and  sold  in  the  manner  provided  for  lands. 

4.  AVhere  any  person  shall  be  seized  or  possessed  of  any 
lands,  tenements,  rents,  and  hereditaments,  or  any  goods  and 
chattels,  in  trust  for  any  person  against  whom  any  execution 


Heal  estate 
may  be  taken 
in  execution. — 
K.  S.  c.  45,  s.  1. 


Executions  to 
issue  against 
real  and  per- 
sonal estate ; 
the  latter  to  be 
first  taken  and 
sold.— n.  S.  c. 
45,  s.  2. 


Levies  on  lease- 
holds of  three 
years,  returned 
to  court,  when. 


Trn«t  estates 
liable  to  execu- 
tion. 


276  EXECUTIONS.  [Chap.  45. 

Purchaser  to  or  process  shall  be  issued,  such  estate  may  be  levied  on  and 
of'trubi*^— 1£°'  ^°^'^  under  such  execution  or  process ;  and  the  purchaser 
S.  0.  45,  s.  4.  thereof  shall  hold  and  enjoy  the  same  freed  and  discharged 
from  all  incumbrances  of  the  person  so  seized,  or  possessed  in 
trust,  as  aforesaid. 
Eight  of  re-  5.    The  equity  of  redemption,  and  the  legal  right  of  redemp- 

estate'^ifaWe  to  tion,  in  lands,  tenements,  rents,  or  other  hereditaments,  which 
execution.— R.  shall  be  pledged  or  mortgaged,  shall  in  like  manner  be  liable 
'^"  ■  to  any  execution  or  process  sued  out  on  any  judgment  against 
the  mortgagor  or  bargainor. 
Sheriff's  deed  6.  The  sheriiT  selling  such  lands,  tenements,  rents,  or  other 
gage.— R."s?'c"  hereditaments  under  execution,  shall  set  forth  in  the  deed  to 
45,  s.  0.  the  purchaser  thereof,  that  the  said  estates  were  under  mort- 

gage at  the  time  of  the  levy  and  sale. 
emnt  fronf  ex-  '^'^^  Wearing  apparel,  working  tools,  arms  for  muster,  one 

ecutiou.— R.  s.  wheel  and  two  pairs  of  cards,  one  loom,  one  bible  and  testa- 
iMs'c'ssI  1  ™f^'it'  °'is  hymn  book,    one     prayerbook,   and   all  necessary 
'  '  '  school-books,  the  property  of  the  defendant,  shall  be  exempt 
from  seizure  under  execution. 
Additional  ar-       8.    In  addition  to  the  foregoing  articles  there   shall  be,  in 

ticles  for  house-  r  c  i  i  i    •  'ii      ,i  •    •  /• 

keeper,  ex-       lavor  ot  every  housekeeper  complying  with  tlie  provisions  of 
emi't-— 1S44.  c.  this  chapter,  exempt  from  execution  on  debts  contracted  since 
1648,  c.  38, s. 2!  the  first  day  of  July,  one  thousand  eight  hundred  and  forty- 
five,  the  following  property,  provided  the  same  shall  have  been 
set  apart  before  seizure,  to  wit:  one  cow  and  calf,  ten  bushels 
of  corn  or  wheat,  fifty  pounds  of  bacon,  beef,  or  jjork,  or  one 
barrel  of  fish,  all  necessary  farming  tools  for  one  laborer,  one 
bed,   bedstead,  and  covering  for  every  two  members  of  the 
family,  and  such  other  property  as  the  freeholders  appointed 
for  that  purpose  may  deem  necessary  for  the  comfort  and  sup- 
port of  such  debtor's  family;  such  other  property  not  to  exceed 
in  value  the  sum  of  fifty  dollars  at  cash  valuation.     Provided, 
hoivever,  that  the  provisions  of  this  section   shall   not  be   ex- 
tended to  any  person,  against  whom  judgment  is  obtained  and 
execution  awarded  for  liability  incurred  for  failure  or  neglect 
to  work  on  the  public  roads,  or  to  muster,  or  pay  his  poll  tax. 
How  to  be  as-       9.    Whenever  any  such  person,  or  his  wife,  in  his  absence, 
^'"'g"''-";^^^^'   may  desire  to  have  the  benefit  of  the    preceding  section,  he 
shall  apply  to  some  justice  of  the  county  in  which  he  resides, 
who  sliall  appoint  three  respectable  freeholders,  disinterested 
and  unconnected  with  the  jiarty,  to  lay  off  and  assign  to  such 
person  the  property  to  which  he  may  be  entitled  under  said 
section ;  and  they  shall  immediately  make  out  a  full  and  fair 
list  thereof,  and  return  the  same  to  the  clerk  of  the  court  of 
pleas  and  quarter-sessions  for  that  county,  who  shall  file  the 
same  among  the  records  of  his  otlice. 
Sale  of  e.^ompt      10.    Every  conveyance  by  sale,  deed  in  trust,  or  otherwise, 
1848  0^  38"s.  5!  ^'^'^  ^'^^  payment   of  debts  or  demands,  of  any  property  set 

apart  as  aforesaid,  shall  be  void. 
No  levy  on  11.    No  execution  shall  be  levied  on  growing  crops,  until  the 

growing  crops    „„mp  nvp  m-itiirF-rl 

till  matured.—  Same  aie  maiuica. 

1844,  0.  35. 


Chap.  45.]  executions.  277 

12.  When  an  execution  issued  by  a  jnstice  shall  be  levied  Justice's  oxe- 
on  lands  and  tenements  and  returned  to  court  according  to  on'Janii'rnd're- 
law,  upon  application  of  the  plaintiff,  the  conrt  shall  enter  up  turnM  to  court, 
judgment  for  the  amount  of  the  recovery  before  the  justice,  ~g'_°g^^j|'^5^j_ 
and  for  costs.  8. 

13.  If,  by  the  sale  of  the  lands  so  levied  on  and  returned  if  not  satisfied, 
to  court,  a  sufficient  sum  shall  not  be  raised  to   satisfy  the  i's^Qe"for'tiie 
judgment  and  costs,  the  plaintiff  may  sue  execution  from  the  balance.— K.  S. 
court  for  the  residue  thereof.  '     '  '  ' 

14.  All  sales  of  land  or  slaves,  by  the  sheriff,  coroner,  con-  Lands  and 
stable,  or  by  the  clerk  and  master  in  equity,  under  any  execn-  ^^lere  sold '^"'^ 
tion  or  decree,  shall  be  made  at  the  court  house  of  the  county  under  execu- 
on  the  first  day  of  the  term  of  the  superior  court,  or  on  the  ^^ifs^w.' 
same   Monday  in  every  month  on  which  the  courts  of  pleas —1844,  c.  9. 
and  quarter-sessions    are    generally   held   for  their  respective 
counties ;  always  making  the  Monday  of  each  county  court 

and  the  first  day  of  the  term  of  the  superior  court,  the  only 
sale  days  in  that  month  ;  and  if,  on  any  sale  day,  the  whole  of 
the  property  taken  in  execution  cannot  be  sold,  or  if  property, 
levied  on  under  other  executions,  cannot  be  offered  for  want  of 
time,  or  cannot  be  sold,  on  the  same  day,  the  sheriff  or  other  ' 

officer  may  postpone  or  continue  the  sale  fi-om  day  to  day, 
tmtil  the  whole  shall  be  sold,  on  giving  public  notice  at  the 
court  house,  that  such  sale  will  be  continued  on  the  ensuing 
day.  Provided,  that  nothing  herein  contained,  shall  be  con- 
strued to  alter  the  rules  and  restrictions  under  which  sales  are 
directed  to  be  conducted,  and  executions  required  to  be  re- 
turned; or  to  alter  the  days  of  sale  in  particular  counties,  as 
now  established  by  law.  And  provided  further,  that  the  courts  Proviso,  as  to 
of  equity  may,  in  any  decree  of  sale  made  by  said  courts,  i,y  crart'oT 
appoint  the  time  and  place  of  sale.  equity. 

15.  The    court   of    pleas    and   quarter-sessions    shall    have  Co.  court  may 
authority,  (a  majority  of  the  justices  being  present,)  to  estab- places  of  sale, 
li.sh  additional  places  of  public  sale  in  their  county.  — R-  S-  c.  45, 

16.  No  sheriff,   or  other  officer,   shall   sell  any  real  estate,  x^tice  to  "be 
equity  of  redemption,  or  legal  right  of  redemption  of  any  real  siven  of  sales 
estate,  until  he  shall  have  advertised  the  same  forty  days  pre-  ^ade,  how  and 
vious  thereto,  in  three  public  places  in  his  county;    nor  sell  f'"' what  time. 
any    slave,   until  he  shall   have   made  like  advertisement  for  ^1*2.  ' 
twenty  days  previous  thereto;  nor  sell  other  personal  property, 

until  like  advertisement  for  ten  days  previous  thereto.  And, 
in  addition  to  the  three  public  places  above  specified,  every 
sale  under  an  execution  issuing  from  a  court  of  record  shall  be 
advertised  by  the  officer,  at  the  court  house  of  his  county. 

17.  No  sale  under  an  execution  or  decree  shall  commence  At  wiiat  hour 
before  ten  o'clock  in  the  morning,  or  after  four  o'clock  in  the  ^'^'  *s.''cf45 
evening,  of  the  day  on  which  the  sale  is  to  be  made.  s.  13. 

18.  Any  sheriff  or  other  officer,  who  shall  make  any  sale  Peiiaityfor sell- 
contrary  to  the  true  intent  and  meaning  of  this  chapter,  shall  law.— u.  s.  c. 
forfeit  and  pay  two  hundred  dollars,  to  any  person  suing  for  ■*=>.  *•  u- 

24 


278 


EXECUTIONS. 


[Chap.  45. 


SlierifT  or  otlier 
officer  return- 
ing no  sale  for 
\^•illltofbiJ- 
ders,  what  he 
shall  state. 


S.  c,  45,  s.  15. 


Justice's  cx'u 
to  bind  per- 
sonalty from 
levy  only. — R. 
S.  c.  45,  s.  16. 
Sheriff,  &o., 
may  take  bond 
for  "forthcoming 
of  property 
levied  on. — E. 
S.  c.  45,  s.  17. 


The  surety  to 
be  bailee  of  the 
officer,  by  tak- 
ing list  of  prop- 
erty, &c. 


Sales,  when 
made  under 
other  levied 
executions. — 
1S44,  c.  34  ;. 
1S46,  c.  50. 


Officer  how  to 
proceed  on  the 
bond,  when 
brokeu.— R.  S. 
c.  45,  s.  18. 


the  same,  one  half  for  his  own  use,  and  the  other  half  to  the 
use  of  the  county  where  the  oflence  is  committed. 

19.  Whenever  a  sheriff  or  other  officer  shall  return  upon 
any  writ  o{  fieri  facias^  or  venditioni  exponas,  that  lie  has  made 
no  sale  for  want  of  bidders,  he  shall  state  in  his  return  the 
several  places  at  which  he  has  advertised  the  sale  of  the  prop- 
erty levied  on,  and  the  places  at  which  he  hath  offered  the 
same  for  sale  ;  and  any  officer  failing  to  make  such  specifica- 
tion, shall  be  subject  to  a  fine  of  forty  dollars ;  and  every  con- 
stable, for  a  like  omission  of  duty,  shall  be  subject  to  a  line  of 
ten  dollars,  for  the  use  and  benefit  of  the  plaintiff  in  the  exe- 
cution ;  for  which,  on  motion  of  the  plaintiff,  judgment  shall 
be  granted  by  the  court  to  which  the  execution  shall  be 
returned ;  or,  in  the  case  of  a  justice's  execution,  by  any  jus- 
tice to  whom  the  execution  shall  be  returned.  Provided,  that 
nothing  in  this  section  contained,  or  any  recovery  under  the 
same,  shall  be  a  bar  to  any  action  for  a  false  return  against 
the  sheriff,  or  other  officer. 

20.  Where  any  execution  shall  be  issued  by  a  justice  of  the 
peace,  and  levied  on  personal  property,  the  same  shall  be 
bound  by,  and  only  from,  the  levy  of  the  execution. 

21.  If  any  sheriff  or  other  officer,  who  may  have  levied  an 
execution  or  other  process  upon  personal  property,  shall  permit 
the  same  to  remain  with  the  possessor,  such  officer  may  take  a 
bond  for  the  forthcoming  thereof  to  answer  the  said  execution 
or  process,  which  bond  shall  be  attested  by  a  credible  witness ; 
but  the  officer  shall  nevertheless,  in  all  respects,  remain  liable 
as  heretofore,  to  the  plaintiff's  claim. 

22.  When  such  a  bond  shall  be  taken,  the  officer  shall 
specify  therein  the  property  levied  upon,  and  shall  furnish  to 
the  surety  a  list  of  the  property  in  writing  under  his  hand, 
attested  by  at  least  one  credible  witness,  and  stating  therein 
the  day  of  sale  ;  and  the  property  so  levied  upon  shall  be 
deemed  iti  the  custody  of  the  surety,  as  the  bailee  of  the  officer  : 
and  all  other  executions  thereafter  levied  on  said  property, 
shall  create  a  lien  on  the  same  from  and  after  the  respective 
levies,  and  shall  be  satisfied  accordingly  out  of  the  proceeds  of 
the  sale  of  said  property ;  but  the  officer  thereafter  levying  shall 
not  take  the  property  out  of  the  custody  of  the  surety.  Pro- 
vided, that  in  all  such  cases,  sales  of  slaves  shall  take  place 
within  sixty  days,  and  of  other  chattels  within  thirty  days,  after 
the  first  levy ;  and  if  sale  shall  not  be  made  witiiin  the  time 
aforesaid,  any  other  officer  who  may  have  levied  upon  the 
property,  may  seize  and  sell  the  same. 

23.  If  the  condition  of  such  bond  be  broken,  the  sIierifT  or 
other  officer,  on  giving  ten  days'  previous  notice  in  writing, 
to  any  obligor  therein,  may  on  motion  have  judgment  against 
him  in  a  summary  manner,  before  the  court  of  pleas  and 
quarter-sessions,  or  the  superior  court  of  the  county  in  wliich 
such  officer  may  reside,  for  all  such  damages  as  said  oflicer 
may  have  sustained  or  be  judged  liable  to  sustain,  not  exceed- 


Chap.  45.]  executions.  279 

ing  the  penalty  of  the  bond,  to  be  ascertained  by  a  jury,  un- 
der the  direction  of  the  court. 

24.  When  an  officer  shall  levy  an  execution,  issued   by  a  omcor  levying 
justice    of  the  peace,  on   land,   he   shall  serve   the  defendant  •["^^^'Jj'*^^''" 
with  notice  in  writing,  five  days  before  the  term  to  which  the  lan.i,  to  notify 
execution  is  returned,   of  the   levy,  and  the  terra  to  which  it  il'^f'' ''"''  ''i'-^^ 

•  II  1  1  1  •(•  •      1  before  court. 

Will  be  returned ;  and  if  it  do  not  appear  to  the  court,  when 

an  order  of  sale  is  prayed,  that  such  notice  has  been  given,  the 

court  shall  direct  a  notice  to  issue,  and   shall   not  make   any 

order  of  sale  until  the  notice  be  served  on  the  defendant  five 

days  previous  to   the  terra  of  the  court  granting  the  same  ; 

Provided  always,  that,  upon  affidavit  made  that  the  defendant  "^"^Yr'rih- 

has  absconded  or  conceals  hiraself,  or  has  removed  out  of  the  notice.— R.  S. 

county,  or  is  an  inhabitant  of  another  State,  so  that  the  notice  ''•*°'  ^-  ^^■ 

cannot  be   personally  served,  the  court  may  order  reasonable 

notice  to  be  given  by  a  publication  in  some  newspaper ;  and, 

upon  proof  of  publication,  may  make  the  order  of  sale. 

25.  The  court  of  pleas  and  quarter-sessions  shall  make  a  County  conrt 
reasonable  allowance  to  officers  for  keeping  and  maintaining 'fbr^eep'^ng''"^ 
horses,  cattle,  hogs,  or  sheep,  and  all  other  property  the  Iceep-  horses,  &o., 
ing  of  which  may  be  chargeable  to  them,  taken  into  their  cus-  ifon!— E.^s!c." 
tody  under  legal  process  ;  and  such  allowance  may  be  retain-  45,  s.  20. 

ed  by  the  officers  out  of  the  sales  of  the  property,  in  prefer- 
ence to  the  satisfaction  of  the  process  under  which  the  proper- 
ty was  seized  or  sold. 

26.  Every  such  officer  shall  make  out  his  account,  and  if '^'^''''^ '° '',''?-*^ 

1*111  1-  /.'ii       ^^^^  return  I11& 

required  give  the  debtor  or  his  agent  a  copy  thereof,  signed  by  account, 
his  own  hand,  and  shall  return  the  account  with  the  execution  |]^^ij*o™^co  v 
or  other  process,  under  which  the  property  has  been  seized  or  — r.  s.  c.  45,  s. 
sold,  to  the  justice  or  the  court  to  whom  the  execution  or  pro-  ^^• 
cess   is  returnable,  and  shall  swear  to  the  correctness  of  the 
several  items  therein  set  forth  ;  otherwise  he  shall  not  be  per- 
mitted to  retain  the  same. 

27.  Where  property,  real  or  -personal,  shall  be  sold  on  any  Pa^Ji^^ser  may 
execution  or  decree,  by  any  officer  authorized  to  make  the  ,„  execution,  if 
sale,   and  the  sale  be  legally  and  bona   fide  made,  and  such  "1?  'J'^ViV'* 
property  be  not  the  property  of  the  person  against  whose  es-  defective.— R. 
tate  such  execution  or  decree  may  have  issued,  by  reason  of  S- <=•  ^'^i  *•  ^^• 
which  the  purchaser  may  have  been  deprived  of  the   same 
property,  or  may  have  been  compelled  to  pay  damages  in  lieu 

thereof  to  the  owner ;  in  every  such  case,  the  purchaser,  his 
executors,  or  administrators,  may  sue  the  person  against  whom 
such  execution  or  decree  may  have  issued,  or  the  person  le- 
gally representing  him,  in  an  action  on  the  case,  and  recover 
such  sura  as  he  may  have  paid  for  the  property,  with  interest 
from  the  time  of  payraent.  Provided  always,  that  such  pro- 
perty, if  the  sarae  be  personal  property,  be  present  at  the  sale, 
and  actually  delivered  to  the  purchaser. 

28.  Parties,  at  whose  suit  the  body  of  any  person  shall  be  pefemlant  <iy- 

,  .  '     .  ^  .  •'  •'    '  ]    11      •  '"S"'  exocu- 

takcn  in  execution   tor  any  judgment  recovered,  their  cxecu- tiou,  debt  not 
tors   or  administrators,  may,  after  the  death  of  the  person  so  disclmrgeil.— 


280  EXECUTIONS.  [CuAr.  45. 

£■  ^•,<'j^^'  *•   taken  and  dying  in  execution,  have  new  execution  against  the 
2i^'2,i  '°'  property  of  the  person  deceased,  as  they  might  have   had  if 

such  person  Jiad  never  been  in  execution. 
Clerks  to  issue  29.  Tlic  clerks  of  tlie  county  and  superior  courts  shall  issue 
withi^nsix^  executions  on  all  judgments  rendered  in  their  respective  courts, 
^■e^ks,  &c.  unless  otherwise  directed  by  the  plaintiff  therein,  within  six 
for'faiiure.—  Weeks  of  the  rendition  of  the  judgment,  and  shall  indorse  upon 
isoo.c.  17,  s.  1,  the  record  the  date  of  such  issue  ;  and  if  the  executions  issued 
'  ■  are  not  returned  satisfied  to  the  courts  to  which  they  are  made 

returnable,  the  clerks   shall  issue  alias  executions,  within  six 
weelcs    thereafter,    unless    otherwise    instructed    as    aforesaid. 
And  every  clerk,  who  shall  fail  to   comply  with  the  require- 
ments of  this  section,  shall  be  liable  to  be  amerced  in  the  sum 
of  one  hundred  dollars,  for  the  benefit  of  the  party  aggrieved, 
under  the  same  rules  that  are  provided,  by  law,  for  amercing 
sheriffs,  and  shall  be  further  liable  to  the  party  injured  by  suit 
upon  his  bond. 
pa?e  deeds  C"      ^^-    Sht-'riirs  and  other  officers,  selUng  lands  or  slaves,  by 
property  sold    authority  of  any  execution  or  process,  shall,  upon  payment  of 
I848"c"39!       ^^^  price,  prepare,  execute,  and  deliver  to  the  purchaser  a  deed 
for  the  property  purchased.     Provided,  that  the  purchaser  of 
land  shall  furnish  the  officer  with  a  description  of  the  land. 
cmionrto'bT        ^1-    Tiie  sheriff  or  other  officer  shall   pay  the  costs  on  aU 
paid  to  clerks,  executions,  which  shall  be  satisfied  in  whole  or  in  part,  to  the 
— R.S.c.  76,s.  gigyjj  Qf  j^j^g  j,Q^|.^  £j.Qj^^  which  the  execution  issued,  and  to  no 
other  person,  on  the  second  day  of  the  term  of  the  court ;  and 
any  such  officer  making  default  herein,  shall  forfeit  and  pay 
forty  dollars. 

Sect.  1.  Lien  of  executor:  older  and  junior,  4  D.  &  B.  454,  4  Dev.  128,  2  lb.  354,  2 
Hawks,  341,  1  lb.  325;  relates  buekto  teste,  2  Ire.  225;  continued  by  alias,  4  Hawks,  309, 
4  Ire.  Eq.  288;/./f(.  to  one  county  alias  to  another,  Z  Dev.  IbS;  waived ;  by  alias  J!,  fa. 
after  levy,  2  Dev.  23,  Bus.  28;  by  indulgence,  2  Dev.  369,  8  Ire.  44.  State  has  priority  3 
Dev.  12.  Wlien  execution  may  issue,  1  Hay.  307.  Death  if  defendant,  1  D.  &  B.  356.  Lien 
on  equitable  interests,  10  Ire.  162.  £state  of  defendant  after  "levy,  4  D.  &  B.  156. 

Sect.  2.  Be/itor  must  show  personalty,  11  Ire.  627,  1  Hawks,  329,  3  lb.  328,  2  lb.  3  77. 

Sect.  4.  ]Vhat  liable  to  levy,  or  not,  2  Jones,  Eq,  33,  7  Ire.  Eq.  70,  6  Ire.  576,  lb.  255, 
lb.  192,  6  Ire.  Eq.  20,  3  Ire.  469,  1  lb.  160,  lb.  553,  1  D.  &  B.  Eq.  398,  3  Dev.  425,  1  Dev. 
Eq.  537,  4  Dev.  172,  4  Hawks,  342.  Fraudulent  trust,  8  Ire.  Eq.  16.  iitate  of  executo- 
ry vendee,  Bus.  Eq.  276,  11  Ire.  456,  4  Ire.  Eq.  494. 

Sect.  5.  Constructive  morlnage,  5  Ire.  525.  Equity  nf  redemptimx,  by  mortqanee  plain- 
«(/?;  1  D.  &  B.  62.  1     :i  J  J        <    J         J  J     I 

Sect.  6.  Sheriff's  deed,  1  D.  &  B.  Eq.  613,  7  Ire.  14. 

Sect.  7.  10  Ire.  43;  Bus.  260. 

Sect.  8.  11  Ire.  496. 

Sect.  9.  13  Ire.  20. 

Sect.  11.  12  Ire.  206;  1  D.  &  B.  241.    nma  leri/  made,  4  D.  &  B.  385. 

Sect.  14.  Hoio sheriff  to  sell:  land,  3  Ire.  137,  7' lb.  387, 3  Hawks,  51 ;  ooo*i,  7  Iro.  Eq. 
47,  8  Ire.  70,  lb.  492,  4  lb.  176,  3  lb.  256,  2  Hawks,  HO,  4  D.  &  B.  241.  Da,i  of  sale,  11 
Ire.  321,  0  lb.  433,  lb.  437,  3  Dev.  428.  Advertisement  waived,  1  \)m.  1.  Private  sale, 
2  Hawks,  199.  Postponement,  3  Hawks,  16.  Sale  not  leilhin  statute  of  frauds,  2  Dev. 
149.  Purdiaser  may  assign  his  hid,  12  Ire.  309,  7  lb.  14.  <S(i/e  under  irregular  judgment 
on  execution,  7  Ire.  14,  lb.  387,  0  Ih.  191,  3  Jlur.  250,  2  Jones,  63;  under  void  execution 
10  Ire.  466.  Relation  of  slieriff's  deed,  1  1).  &  B.  686.  Fraud  in  sale,  2  Mur.  364,  8  Ire! 
292, 10  lb.  203,  Bus.  352,  4  D.  &  B.  201,  1  Hawks,  329. 

Sect.  20.  l  D.  &  R.  601 ;  1  Mur.  260. 

Sect.  21.  Obligation  of  bond,  13  Ire.  228,  7  lb.  837,  1  D.  &  B.  437.  Damages,  4  Dev. 
424. 

Sect.  24.  Levy:  when  returned,  1  Hawks,  329;  after  death  of  defemhni,  5  Ire.  279; 
hmo  made.  Bus.  28 ;  description  (if  land  in,  6  Ire.  382,  4  lb.  38.  y-VVin  of  return,  3  Ire. 
298;  evidence  of  notice,  6  Ire.  382,  3  lb.  137,  5  lb.  22.    Form  of  vend,  exp.,  12  he.  11. 

Sect.  29.  2  Jones,  98. 


CnAP.    46.]        EXECUTOKS   AND   ADMINISTRATORS. 


281 


CHAPTER  46. 


EXECUTORS  AND  ADMINISTRATORS. 


SliCTION 

1.  Letters  testamentary  and  of  adminis- 

tration, granted  by  county  court. 

2.  Administi-ation,  to  whom  granted. 

3.  Wlien  several  in  equal  degree. 

4.  Executors  and  administrators  to  take 

oath,  and  administrator  to  give  bond. 
Form  of  the  condition. 
6.  Bond  of  administrator  pend.  lite,  how 
conditioned. 

6.  His  duties  and  powers:   may  collect 

debts,  and  sell  by  order  of  court. 

7.  Powers  to  cease  on  grant  of  probate 

or  admiuisti-ation.  His  suits,  how 
prosecuted. 

8.  Administrator  pi^nil.    lite    not  to    be 

sued.  Limitation  of  time  to  run 
from  grant  of  common  administra- 
tion. 

9.  Speci.il  administrator  in  certain  cases 

appointed  by  three  justices.  His 
power  and  duties. 

10.  Bond  to  be  given. 

11.  Appointed  by  court  of  equity:  when. 

12.  Executors  residing  out  of  the  State,  to 

give  bond  within  a  year. 

13.  A  Tuan  marrying  executrix,  shall  give 

bond,  &c. 

14.  Administering  before  letters  granted, 

prohibited.    Penalty. 

15.  Bonds,  how  payable, — remedy  there- 

on. 

16.  Inventory  to  be  returned,  when. 

17.  Perishable  estate  to  be  sold.     Other 

personal  estate  sold  by  order  of 
court:  when. 

18.  Terms  of  sale. 

19.  Powers  under  wills  not  prejudicing 

creditors  to  be  followed. 

20.  Sales,  &c.,  at  public  auction,  between 

10  and  4  o'clock.  Penalty  for  sell- 
ing otherwise.     Cases  excepted. 

21.  Dignity  of  debts,  prescribed. 

22.  Executor  and  administrator  to  adver- 

tise within  two  months. 

23.  How  advertisements  may  be  proved. 

24.  To  p:iy  over  at  the  end  of  two  years. 

Refunding  bond  to  be  given.  Reme- 
dy of  creditors  thereon. 

25.  Bond    and  descriptive  lists  of  prop- 

erty to  be  filed  in  county  court. 

26.  Creditors  may  have  scire  facias  on 

bond. 


Section 

27.  Property  remaining  seven  years  un- 

claimed in  their  hands  to  be  paid  to 
university.  If  not  claimed  in  ten 
years,  held  absolutely. 

28.  In  certain  cases,  may  file  petition  for 

settlement. 

29.  What  is  due  to  absentee,   or  infant 

without  guardian,  to  be  paid  to  clerk 
of  court. 

30.  Clerk  liable  on  his  bond,  and  allowed 

compensation. 

31.  Debtor    named     executor,    not    dis- 

charged. 

32.  Trust  estates  in  personalty  to  be  as- 

sets. 

33.  Executors,  &c.,  allowed  nine  mouths 

to  plead  in  court. 

34.  And  before  justices. 

35.  Warrant  returned  to  court  on  plea  of 

no  assets.     Costs  in  such  cases. 

36.  No  lien  cre.ated  by  commencing  suit. 

37.  Deed  for  land  contracted  to  be  sold 

by  deceased,  may  be  made  by  exec- 
utors, &c. 

38.  Commissions  not  above  five  per  cent. 

on  sales,  &c.,  allowed.  Proviso  as  to 
sale  of  lands. 

39.  Sureties  of  executors,  &c.,  in  danger 

of  loss,  may  have  relief.  Proceed- 
ings therefor. 

40.  Lands  devised  to  be  sold  by  executors, 

by  whom  to  be  sold. 

41.  Who  chargeable  as  executor  de  son 

tort. 

42.  Executors  or  administrators,  of  exe- 

cutors or  administrators,  liable  for  a 
devastavit. 

43.  Eight  of  action  to  suiwive  to  execu- 

tors, &c. 

44.  When  personalty  insufficient  to  pay 

debts,  &o.,  executor,  &c.  niay  sell 
real  estate. 

45.  License,  how  obtained. 

46.  Sale  of  part  or  whole  may  be  licensed. 

47.  Heirs,  &c.  to  be  made  parties. 

48.  When  petition  may  be  heard. 

49.  Terms  of  sale,  directed  by  court. 

50.  Proceeds  of  sale  not  disbursed,  to  be 

real  estate. 

51.  Proceeds  to  be  assets,  to  pay  debts  and 

charges  of  administration. 

52.  Bonds  of  administrators,  &c.,  held  as 


24* 


282 


EXECUTOES   AND   ADMINISTRATORS.       [ClIAP.    46. 


Section 

security  for  both  real  and  personal 
assets.  Additional  bond  may  be  re- 
quired. 
63.  What  real  estate  may  be  sold.  Pro- 
yiso  fur  bonajide  purchasers  without 
notice. 

54.  Wliat  judgment  given  in  case  of  fraud- 

ulent conveyance. 

55.  Issue  to  try  title  ordered,  when. 

56.  Kxecutor  to  give  bond  when  licensed 

to  sell. 

57.  Proceeds  of  all  real  estate  to  be  legal 

assets. 

58.  Specific   devisees,   whose   lands    are 

sold,  entitled  to  contribution. 


Section 

59.  Undevised  real  estate  first  chargeable 

with  debts. 

60.  To  what  period  past  this  mode  of  sell- 

ing realty  applies. 

61.  Sales  by  heirs,  &c.,  within  two  years, 

&c.,  void  as  to  creditors. 

62.  night  of  dower  saved. 

63.  Crops  ungathered  at  decease  shall  go 

to  executor,  &c.,  and  not  to  devisee 
or  widow. 

64.  Service  on  absent  executors  not  hav- 

ing given  bond,  how  made. 

65.  Female  executor,  &c.,  may  swear  to 

inventory,  &c.,  before  a  justice. 


Letters  testa- 
mentary and  of 
adm'n  granted 
by  countv 
courts. — ^,  S. 
c.  46,  s.  1. 


Administra- 
tion, to  whom 
granted. — R.  S. 
c.  46,  s.  2. 


When  several 
in  equal  degree. 
— R.  S.  c.  46, 
s.  2. 


Executors  and 
administrators 
to  take  oath, 
and  adminis- 
trator to  give 
bond. 


Form  of  the 
condition. — R. 
S.  c.  46,  s.  3. 


1.  Letters  testamentary  and  letters  of  administration  shall 
be  granted  in  the  court  of  pleas  and  qviarter-scssions  of  the 
county,  where  the  testator  or  intestate  had  his  u.?ual  residence 
at  the  time  of  his  death,  or,  where  tlie  deceased  had  fi.xed 
places  of  residence  in  more  than  one  county,  then  in  either; 
and  such  letters  shall  be  signed  and  issued  by  the  clerk  of  the 
court. 

2.  When  any  person  shall  die  intestate,  or  having  made  a 
will,  the  executor  shall  refuse  to  prove  the  same  or  qualify,  ad- 
ministration shall  be  granted  to  the  widow,  and  after  her  to 
the  next  of  kin,  or  to  both,  at  the  discretion  of  the  court ;  and 
if  the  widow  and  next  of  kin  fail  to  apply  for,  or  to  procure 
the  same,  then  to  the  highest  creditor  residing  within  the 
State,  proving  his  debt  upon  oath  before  the  court  granting 
the  same. 

3.  When  divers  persons  claiming  the  administration  are  in 
equal  degree,  the  court  may  grant  it  to  any  one  or  more  of 
them  ;  and  if  the  persons  aforesaid  fail  to  ap|)ly  for  the  same, 
or  if  the  person  applying  shall  be  deemed  incompetent,  the 
court  may  grant  administration  to  any  discreet  person. 

4.  No  clerk  shall  issue  letters  testamentary,  until  the  execu- 
tor has  been  duly  qualified  in  open  court  by  taking  the  oatli 
of  an  executor;  nor  letters  of  administration,  until  the  admin- 
istrator has  in  like  manner  been  duly  qualified  by  taking  the 
oath  of  an  administrator,  and  has  also  given  sutlicient  bond, 
with  two  or  more  able  sureties,  in  the  penalty  of  double  the 
supposed  amount  of  the  real  and  personal  estate  of  the  in- 
testate, and  with  the  condition  in  form  following:  — 

The  condition  of  this  obligation  is  such,  that  if  the  above- 
bounden  A.  B.,  administrator  of  C.  D.,  deceased,  do  make  a 
true  and  perfect  inventory,  and  account  of  sales,  of  all  the  real 
estate,  and  all  the  goods  and  chattels,  rights  and  credits  of  the 
deceased,  which  have  or  shall  come  to  his  possession  or  knowl- 
edge, or  to  the  ))ossession  of  any  other  person  for  him,  and  the 
same  do  exhibit  into  the  odiee  of  the  court  where  order  for 
administration  passed,   within  ninety  days  after  the  date  of 


Chap.  46.]     executors  and  administrators.  283 

these  presents,  and  do  well  and  traly  administer  according  to 
law,  all  the  goods,  chattels,  rights  and  credits  of  the  deceased, 
and  the  proceeds  of  all  his  real  estate,  that  may  be  sold  for  the 
payment  of  his  debts,  which  shall  at  any  time  come  to  the 
possession  of  the  said  A.  B.,  or  to  the  possession  of  any  other 
person  for  him ;  and  further  do  make  a  true  and  just  account 
of  his  administration  within  two  years  after  the  date  of  these 
presents,  and  all  the  rest  and  residue  of  the  said  proceeds  of 
real  estate,  goods,  chattels,  and  credits  which  shall  be  found 
remaining  upon  his  account,  (the  same  being  first  examined 
and  allowed  by  the  court,)  shall  deliver  and  pay  to  such  per- 
son, as  the  same  shall  be  due  unto,  pursuant  to  law;  and  if  it 
shall  appear  that  any  last  will  and  testament  was  made  by  the 
deceased,  and  the  executor  or  executors  therein  named  do  ex- 
hibit the  same  into  court,  making  request  to  have  it  allowed 
and  approved,  and  the  said  A.  B.,  above  bound,  being  there- 
imto  required,  do  render  and  deliver  the  said  letters  of  admin- 
istration (probate  of  such  testament  being  first  had  and  made) 
in  the  said  court,  then  this  obligation  to  be  void  and  of  no 
effect. 

5.  The  bond  of  every  administrator,  pendenle  lite,  shall  be  Bond  of  adm'r 
conditioned  that  he  will  make  and  return  to  court,  wiUiiu  three  ^"a^jtio^eij"^ 
months,  a  true  inventory  of  all  the  goods,  chattels,  rights   and 

credits  of  the  deceased,  which  have  or  may  come  to  his  pos- 
session or  knowledge;  and  that  he  will  render  a  true  account 
on  oath  to  the  court,  of  all  the  goods,  chattels,  debts,  and 
effects  of  the  deceased,  that  shall  be  by  him  received,  as  such 
administrator,  whenever  his  tiaist  shall  cease,  and  will  deliver 
the  same  to  the  person  who  shall  be  appointed  executor  or  ad- 
ministrator of  the  deceased,  or  to  such  other  person  as  shall  be 
lawfully  authorized  to  receive  the  same. 

6.  Such  administrator  shall  collect  all  the  goods,  chattels,  His  duties  and 
and  debts  of  the  deceased,  and  preserve  them  for  the  executor,  coMect^deb'te' 
or  administrator  thereafter  to  be  appointed ;  and  for  that  pur-  and  sell  by  or- 
pose  may   commence   and  maintain   suits   as    administrator ; 

and  may  also  sell  all  such  goods  as  the  court  may  allow. 

7.  Upon  the  granting  of  letters  testamentary  or  of  adminis-  Powers  to  cease 
tration,  the  power  of  such  administi-ator  shall  cease ;  and  he  bat^or'adm™." 
shall  forthwith  deliver  all  the  goods  and   effects   of  the  de- 
ceased,  in   his  hands,  to  the  executor  or  administrator,  who  His  suits,  how 
may  prosecute  any  suit  commenced  by  such  special  adminis-  prosecuted. 
trator,  in  like  manner  as  an  administrator  de  bonis  non  may 
prosecute  a  suit  commenced  by  a  former  executor  or  adminis- 
trator. 

8.  Such  administrator  shall  not  be  liable  to  an  action  by  a  Not  to  be  sued. 
creditor  of  the  deceased ;  and  the  time  of  limitation  for  suits  n|™from'CTan't 
against  the  estate,  shall  begin  to  run  only  from  the  granting  as  of  conimou 
aforesaid  of  letters  testamentary  or  of  administration.  ""  '"  "' 

9.  When  any  person  shall  die  intestate,  and  his  estate  is  in  Special  adm'r 
such  situation  as  to  require  the  immediate  care  of  some  per-  appoln'ted  bv^* 
son,  any  three  justices  of  the  peace  of  the  county  in  which  the  three  justices. 


284  EXECUTORS   AND   ADMINISTRATORS.        [ChAP.  46. 

His  power  and  deceased  had  his  last  usual  place  of  residence,  may  meet  to- 
e^ie^sTi?'  ^'  gather  at  the  ollice  of  the  county  court  of  said  county,  and 
grant  to  some  discreet  person  special  letters  of  administration 
on  the  estate  of  the  deceased,  authorizing  him  to  collect  and 
take  into  his  possession  the  estate,  until  the  next  ensuing  court 
of  pleas  and  quarter-sessions  of  said  county,  and  to  expose  to 
public  sale,  upon  a  credit  of  not  more  than  twelve  nor  less 
than  six  months,  so  much  of  the  crop,  stock,  and  provisions  on 
hand,  as  the  said  justices  may  deem  advisable ;  a  schedule 
whereof  shall  be  made  out  by  the  justices,  and  a  copy  thereof, 
signed  by  them,  shall  be  filed  with  the  clerk. 
riven— R^s  ^^'    Before  granting  said  administration,  the  justices  shall 

e.  46,  s.  4.    "    take  from  such  person,  bond  with  approved  security  in  such 
sum  as  they  shall  direct,  conditioned  for  his  faithful  adminis- 
tration of  the  estate  until  the  next  ensuing  court  of  pleas  and 
quarter-sessions,  and  for  his  faithfully  accounting  for  and  de- 
livering the  estate  to  such  person,  as  the  said  court  may  ap- 
point administrator;  and  the  bond  shall  be  filed  with  the  clerk 
for  safe  keeping. 
Appointed  by        11.   When  any  person  shall  die  intestate,  leaving  mortgaged 
fn^'eruiin'^"''''^^  personal  property,  and  there  shall  be  no  administration  granted 
cases.— R.  S.     upon  his  estate,  the  court  of  equity  for  the  county  where  the 
c-  46,  s.  5.        mortgagee  resides  may  appoint  a  special  administrator  of  such 
intestate,  to  the  end  that  the  mortgage  may  be  foreclosed,  or  a 
decree  obtained  for  the  sale  of  the  property. 
Executors  re-        12.    When  a  testator  shall  appoint  any  person  residing  out 
the  slate,  to      of  the  State,  executor  of  his  last  will  and  testament,  the  court 
give  bond  with  of  pleas  and  quarter-sessions,  before  which  the  same  shall  be 
in  one  year.—   offered  for  probate,  shall  cause  the  executor  named  therein  to 
R.  S.  c.  46,  s.  6.  enter  into  bond  with  good  and  sufficient  security  for  his  faith- 
ful administration  of  the  estate  of  the  testator,  and  for  the  dis- 
tribution thereof  in  the  manner  prescribed  by  law  ;  the  penalty 
of  which  shall  be  double  the  supposed  amount  of  the  real  and 
personal  estate  of  the  testator;  and  until  the  executor  shall 
enter  into  such  bond,  he  shall  have  no  authority  to  intermeddle 
with  the  estate;  and  the  court  of  the  county,  in  which  the  tes- 
tator had  his  last  usual  place  of  residence,  shall  grant  letters  of 
administration  with  the  will  annexed,  which  shall  continue  in 
force  until  the  said  executor  shall  enter  into  bond,  as  aforesaid. 
Provided,  nevertheless,  that  the  said  executor  shall  enter  into 
bond,  as  by  this  section  directed,  within  the  space  of  one  year 
after  the  death  of  the  testator,  and  not  afterwards. 
A  man  marry-       13.  Ill  all  cascs  where  a  man  shall  marry  a  woman  who  is 
s'lmii  give  "^'   ^f  executrix,  he  shall  give  bond  with  security  for  the  faithful 
boMd,&c.— R.   administration  of  the  estate,  as  is  required  in  cases  of  adminis- 
■  *■   ■     tration ;  and  there  shall  be  the  same  remedy  thereon  ;  and  if 
he  shall  fail  to  give  such  bond,  the  court  upon  application  may 
order  and  decree  that  the  power  of  said  executor  in  right  of  his 
wife,  and  of  such  executrix,  be  null ;  and  may  tiien  grant  let- 
ters of  administration  with  the  will  annexed  or  otherwise,  as 
the  case  may  require,  to  such  ])crsoii  as  they  may  deem  meet. 


Chap.  46.]     executoks  and  administrators.  285 

14.  No  person  shall  enter  upon  the  administration  of  any  Ailministering 
deceased  person's  estate,  until  he  has  obtained  letters  of  ad-  g^.™,edfpr^ 
ministration,  under  the  penalty  of  one   hundred  dollars,  one  hibited. 
half  to  the  use  of  the  informer  and  the  other  half  to  the  State,  s.'"  le.'s.  si 
Provided^  that  nothing  contained  in  this  or  any  preceding  sec- 
tion, shall  prevent  the  family  of  the  deceased  from  using  so 

much  of  the  crop,  stock,  and  provisions  of  the  deceased,  as  may 
be  necessary,  until  the  end  of  the  next  succeeding  court  of 
pleas  and  quarter-sessions  of  the  county,  wherein  letters  of  ad- 
ministration are  issuable. 

15.  The  bonds  given  by  any  executor   or   administrator,  Bonds  how 
general  or  special,  shall  be  made  payable  to  the  State  of  North  []y\,V  them!^' 
Carolina,  and  any  person  injured  by  breach  thereof  may  put  E.  S.  c.46,s.  9. 
the  same  in  suit,  and  recover  such  damages  as  he  may  have 
sustained. 

16.  Every  executor  and  administrator,  at  the  term  of  the  inventory  to  be 
court  of  pleas  and  quarter-sessions  next  succeeding  his  quail-  'vheli?— R.  S. 
fication,  shall  return  to  the  court  on  oath  a  just,  true,  and  per-  c.  i6,  s.  lo. 
feet  inventory  of  all  the  real  estate,  goods  and  chattels  of  the 
deceased  which  have  come  to  his  hands,  or  the  hands  of  any 

other  person  for  him,  which  shall  be  signed  by  him,  and  be  re- 
corded by  the  clerk  of  the  court. 

17.  Executors  and  administrators,  as  soon  after  their  quali-  fjftg'^to^beM?d". 
fication  as  practicable,  shall  sell,  without  any  order  for  that  pur-  other  personal 
pose,  all  the  perishable  estate  liable  to  waste  and  destruction,  ^rto rf'^o^Jt. 
except  such  as  may  be  specially  bequeathed :  and  when  the  when.— R.  S. 
estate  shall  be  so  indebted  that  the  debts  cannot  be  discharged  >=■  ^^^  ^-  "• 
by  the  -moneys  on   hand  at  the  death  of  the  testator,  and  the 

sales  of  such  perishable  estate ;  or  Avhen  there  cannot  con- 
veniently be  a  proper  distribution  of  the  estate,  the  executor  or 
administrator  shall  sell  the  personal  estate  for  the  purposes  of 
paying  debts  or  distribution,  or  both,  as  the  case  may  require; 
but,  before  making  such  sale,  the  executor  or  administrator 
shall  apply  to  the  county  court,  and,  on  showing  the  necessity 
of  the  sale,  the  court  shall  allow  the  same. 

18.  All  sales  by  an  executor  or  administrator,  of  the  perish-  Terms  of  sals. 
able  or  personal  estate,  shall  be  publicly  made  on  a  credit  of  six  ~j{_  '  '^'  ' 
months,  and  after  twenty  days'  notification  by  advertisement 

posted  at  the  court  house  and  four  other  public  places  in  the 
county;  and  the  proceeds  of  the  sale  shall  be  secured  by  bond 
with  good  security,  and  collected  as  soon  as  practicable,  other- 
wise the  executor  or  administrator  shall  be  answerable  for  the 
same ;  and  such  moneys  when  received  shall  be  liable  for  the 
satisfaction  of  judgments  previously  obtained  and  entered  as 
judgments,  when  assets  should  come  to  the  hands  of  the  exec- 
utor or  administrator. 

19.  Nothing  in  the  preceding  section  shall  be  construed  to  Powers  under 
affect  the  powers,  trusts,  or  authorities  of  an  executor,  derived  |u'iici'ngcred'it- 
from  the  will  of  his  testator,  if  thereby  creditors  be  not  delayed,  m-s  to  be  foi- 
nor  the  order  changed  in  which  by  law  they  are  entitled  to  be  ,,""453. 12. 
paid. 


286  EXECUTORS   AND   ADMINISTRATORS.        [ChAP.    46. 

Sales,  &c.,  at        20.    All  sales,  rentins',  and   hirins;  of  the    proncrtv  of  de- 

piiblic  auction,  „„„       i  u    ii    i  i  i     i  i  i  I-  i 

between  10       Ceased  persons,  shall  be  made  and  done  b}'  public  vendue  or 
and  4  o'clock,    auction ;  and  no  such  sale,  renting,  or  hiring  shall  commence 
before  ten  o'clock  in  the  morning,  or  after  four  o'clock  in  the 
evening,  of  the  day  on  which  the  sale,  renting,  or  hiring  is  to 
felling  othir-     ^^.  "lade  :  and  any  executor  or  administrator,  who  shall  other- 
wise, wise  make  any  sale,  renting,  or  hiring,  shall   forfeit  and   pay 
two  hundred  dollars,  to  any  person  suing  for  the  same.     Pro- 
2f!!ys'''^'"   iiWefi,  that  nothing  herein   contained  shall    be    construed   to 
46,'  s.  14. "  '     restrict  discretionary  powers  vested  in  executors  by  the  wills  of 

their  testators. 
Dipiityof  21.    In  the    payment   of  debts   of  deceased   persons,  bills, 

scribed."^— R.    bonds,  and  promissory  notes,  with  or  without  seal,  and  all  set- 
S.  c.  46,  s.  15.    tied  and  liquidated  accounts,  signed  by  the  debtor,  shall  be 

regarded  as  of  equal  dignity,  and  be  paid  accordingly. 
Executor  and       22.    Every  executor  and  administrator  within   two  months 
to  adverti'se"'    aft^r  being  qualified,  shall  advertise  at  the  court  house  and  two 
within  t\ro       other  public  places  of  the  county,  in  which  the  deceased  usu- 
s!  0.46,  s.  16.   sl'y  dwelt  at  the  time  of  his  death,  for  all  persons  to  present 
their  accounts  and  demands  of  every  kind  for  payment,  within 
the  time  prescribed  by  law. 
How  the  adver-      23.    Every  executor  and  administrator  shall  take  a  copy  of 
be  proved.— ''ft.  the  advertisements  he  shall  put  up,  in  pursuance  of  the  pre- 
S.  c.  46,  s.  ir.   ceding  section,  which,  with  an  affidavit  subscribed  thereon  by 
a  witness  before  some  justice  of  the  peace  of  the  county  in 
which  the   advertisements    are  directed  to  be  made,  stating 
therein  the  times  and  places  when  and  where  such  advertise- 
ments were  seen,  shall,  at  the  term  of  the  court  next  following 
that  in  which  the  executor  or  administrator  shall  qualify,  be 
filed  in  the  office   of  the  clerk  of  said  court ;  and  the  copy  so 
attested,  shall  be  considered  as  a  record  of  the  court ;  and  a 
copy  thereof  duly  certified  by  the  clerk,  with  a  certificate  that 
it  was  filed  at  the  time  herein  required,  shall  be  received  as 
evidence  in  any  court.     Provided  alwai/s,  that  nothing  herein 
contained  shall  preclude  any  executor  or  administrator  from 
proving  his  compliance  with  the  preceding  section  in  any  other 
manner  which  may  be  deemed  competent. 
To  pay  over  at      24.    No  executor  or  administrator,  after  two  years  from  his 
year™    "    "°  qualification,  shall  hold  or  retain  in  his  hands  more  of  the  de- 
ceased's estate  than  amounts  to  his  necessary  charges  and  dis- 
bursements, and  such  debts  as  he  shall  legally  pay;  but  all 
such  estate  so  remaining  shall,  immediately  after  the  expira- 
tion of  two  years,  be  divided,   and  be  delivered  and  paid  to 
such  person  to  whom  the  same  may  be  due  by  law,  or  the  will 
of  the  deceased,  such   person  or  some  other  for  him,  giving 
Rcfnnding        bond  with  two  or  more  able  sureties,  conditioned  that  if  any 
bond  to  be  giv- debt,  truly  owed  by  the  deceased,  shall  be  .afterwards  sued  for 
Remedy  of       and  recovered,  or  Otherwise  duly  made  appear,  he  will  refund 
b^Kl'^I.^R.'s.    ^""^'  P^y  ''i«  ratabh;  part  of  such  debt,  out  of  the  part  or  share 
c.  40,  s.  18.       allotted  to  him  :  such  bond  shall  be  made  payable  to  the  State 
of  North  Carolina,  and  shall  enure  to  the  sole  use  of  the  crcd- 


Chap.  46.]     executors  and  administeatoes.  287 

itors,  who  may  have  a  scire  facias,  in  manner  hereinafter  di- 
rected, against  the  obligors  therein. 

25.  The  executor  or  administrator  shall  bring  the  bond  into  Bond  ami  de- 
court,  at  the  term  next  after  it  is  taken,  together  with  a  de-  o^property  w 
scriptive  list  of  the  property  delivered,  and  a  record  shall  be  be  filed  in  co. 
made  of  the  bond  and  list,  which  shall  be  filed  in  the  office  of  ^""g'^g^m.' 
the  court. 

26.  And  in  all  suits,  where  the  executor  or  administrator  Creditors  may 
shall  plead  fully  administered,  no  assets,  or  not  sufficient  assets  bond.  —  u""s°" 
to  satisfy  the  plaintiff's  demand,  and  such  plea  shall  be  found  o.  4o,  s.  lu. 

in  favor  of  the  defendant,  the  plaintiff  may  proceed  to  ascer- 
tain his  demand  and  sign  judgment;  and  on  motion  a  writ 
of  scire  facias  shall  issue,  summoning  the  obligors  in  such 
bond  to  show  cause  why  execution  shall  not  issue  against 
them  for  the  amount  of  the  judgment ;  and  if  judgment  be 
rendered  against  the  defendants  or  any  of  them,  execution  may 
issue  thereon. 

27.  All  sums  of  money  or  other  estate  of  whatever  kind,  Property  ro- 
which  shall  remain  in  the  hands  of  any  executor  or  adminis-  year"  mi-^^^" 
trator  for  seven  years  after  his  qualification,  unrecovered  or  un-  citiimed  in  then- 
claimed  by  suit,   by  creditors,   next  of  kin   or  others  entitled  uulVersity. 
thereto,  shall  be  paid  by  the  executor  or  adminislTator,  to  the 

trustees  of  the  University  of  North   Carolina  ;    and  the   said 
trustees  are  authorized  to  demand,  sue  for,  recover,  and  collect 
such  moneys  or  other  estate  of  whatever  kind,  and  hold  the 
same  without  liability  for  profit  or  interest,  until  a  just  claim 
therefor  shall  be  preferred    by  creditors,  next  of  kin,  or  others  if  not  claimed 
entitled  thereto;  and  if  no  such  claim  shall  be  preferred,  within  1,"^ "Sut'e- 
ten  years  after  such  rnoney  or  other  estate  be  received  by  the  ly.  — R.  s.  o. 
said  trustees,  then  the  same  shall  be  held  by  them  absolutely,    ^"i  ^"  '^^' 

28.  Whenever   any   executor  or  administrator   shall    have  lu  certain 

in    his    hands    any    effects   belonging   to    the    estate    of    his  petition  for  s^'t- 
testator   or    intestate,    or   such    estate    shall  be   insolvent,   he  tiemout.— 
may,  at  any  time  after  two  years  from  his  qualification,  file  i^*^- <=■  *°' ^- 1- 
his  petition  against  the  parties  interested  in  the  due  adminis- 
tration of  the  same,   in  any  court  of  the  county  wherein  he 
qualified,  setting  forth  the  facts,  and  praying  for  an  account 
and  settlement  of  the  estate  cornmitted  to  his  charge  ;  which 
petition  shall  be  proceeded  on  according  to  the  rules  of  court, 
and  on  the  hearing  thereof,  such  order  and  decree  shall  be  made 
in  the  premises  as  may  seem  to  the  court  to  be  just  and  right. 

29.  When  any  balance  of  money  or  other  estate  shall  be  What  is  due  to 
found  in  the  hands  of  the  petitioner,  due  or  belonging  to  any  f;,at'«it'iiu'iit'"' 
absent  defendant,  or  infant  without  guardian,  the  court  in  its  g"ar<'i-"i.to'>c 
discretion  may  direct  the  same  to  be  paid  and  delivered  to  J.'"y,.t.1^  is^s" 
the  clerk,  or  clerk  and  master,  to  be  by  him  invested  or  other-  c.  40,  s.  2. 
wise  managed,  under  the  direction  of  the  court,  for  the  use  of 

such  absent  person,  or  infant. 

30.  The  officer   intrusted  with  the    property  shall   receive  ciork  liable  on 
such  compensation  for  his  services  as  the  court  may  allow,  '^\'i'„iv™i'eoni'l 
and  shall  be  liable  on  his  official  bond  for  the  discharge  of  iiH-saiion.- 
ibis,  c.  4u,s.  3. 


288  EXECUTORS   AND   ADMINISTRATORS.  [ChAP.    4G. 

the  duties  enjoined  upon  him  by  the  court  in  relation  to  said 

property. 
Debtor  named       31.    The  appointing  any  person  executor  shall  not  be  a  dis- 
charVed!— r"    charge  of  any  debt  or  demand,  due  from  him  to  tlie  testator. 
S.  c.  46,  s.  21.        32.    If  any  cestui  que   trust  shall  die  leaving  any  equitable 
personaUy  to'"  interest  in  personal  estate  which  shall  come  to  his  executors 


S.  c.  46,  s.  Ji2. 


assets. 


Ex'rs&adm'rs  33.  No  executor  or  administrator  shall  be  compelled  to 
moiiths  t"""'  plead  to  any  original  suit,  brought  against  him  in  any  court, 
plead  in  court,  until  the  expiration  of  nine  months  from  and  after  his  takins; 

— R.   S.  c.  46,  ,  .  j  r  .  1         jt:  ° 

s.  23.  upon  hmiseli  the  othcc. 

And  before  jus-  34.  When  an  executor  or  administi-ator  shall  be  warranted 
46  S.T4.  '  foj"  ^iiy  demand,  before  the  expiration  of  nine  months  as  afore- 
said, the  magisti-ate,  before  whom  the  warrant  shall  be  re- 
turned, shall  postpone,  by  an  indorsement  on  the  warrant,  the 
trial  thereof  to  some  day  immediately  after  the  expiration  of 
said  time,  on  which  day  it  may  be  tried. 
Warrant  re-  35.    When  an  executor  or  administrator  shall  be  waiTanted, 

turned  to  court  j-,g  ^ndsv  on  the  trial  su2;s;est  a  want  of  assets,  and  the  masris- 

on  pleji  01  no  "  oo  '  o 

assets.  trate   shall  indorse  the  same  on  the  warrant;  and,  if  he  iind 

the  plaintiffs  claim  to  be  just,  lie  shall  give  a  judgment  there- 
for, and  return  the  warrant,  with  such  indorsement  and  judg- 
ment, to  the  next  term  of  the  court  of  pleas  and  quarter-ses- 
sions of  his  county ;  when  the  defendant  may  plead  any  plea 
relative   to    his   assets,  which   could  be  pleaded,  had  the  suit 

Costs  in  such    been  instituted  returnable  to  said  term;  and  in  all  cases  so 

46^s'  25^'  ^' "'  returned,  the  same  costs  shall  be  allowed  as  in  cases  of  appeals 
from  justices. 

No  lien  created      36.    No  lien  Oil  the  goods  of  a  deceased  person  shall  be 

?'7^^=?,'ii™'^Tl°c  created  by  the  commencement  of  a  suit,  or  the  service  of  a 

ing  suic- — ii,.  p.        .  y  '11  ■     1     •    • 

c.  46,  s.  26.       writ  on  Ins  representative  ;  but  the  executor  or  administrator 

may  sell  the  goods,  as  if  such  writ  had  not  been  served,  or  suit 
commenced. 
Deeds  for  lands  37.  When  any  deceased  person  shall  have  bona  Jide  sold 
be'soM  Iv  de-  ^"Y  la"<^^*)  ^"d  shall  have  given  a  bond  to  the  purchaser 
ceased,  niay  be  to  convey  the  Same,  and  the  bond  hath  been  duly  proved 
&c.— K.'''s!V'  before  the  court  and  registered  in  the  county  where  the  lands 
46, s. 28.  are  situated,  if  in  the  State;  or  if  not  in  the  State,  shall  be 

proved  before  the  court  and  registered  in  the  county  where 
the  obligee  lives,  or  obligor  died  ;  his  executor  or  administra- 
tor   may    execute   a  deed  to   the    purchaser   conveying   such 
estate  us  shall  be  specified  in  the  bond;  and  such  deed  shall 
convey  the  title   as  fully   as  if  it  had  been  executed  by  the 
deceased  obligor.     Provided,  that  no  deed  shall  he  made  but 
upon  payment  of  the  price,  if  that  be  the  condition  of  the 
bond. 
Commissions         38.    The  courts  of  plcas  and  quartcr-scssioiis  are  authorized 
^enL  Moved ''  ^^'^  directed  to  allow  commissions  to  executors  and  adminis- 
for  sales, &c.— trators,    not  exceeding  live  jicr  r.cnlum,  upon  the  amoniit  of 
■  ■''■*^'*"^^' receipts  and  expenditures,  which   shall  appear   to   be   fairly 


Chap.  46.]     executors  and  administrators.  289 

made  in  the  course  of  administration  ;    and  such  allowance 
may   be  retained  out  of  the  assets  against  creditors  and  all 
other  persons   claiming  an   interest  in   the  estate.     And  the 
court,   in   malting  such   allowance,  shall  consider  the  trouble 
and  time  expended  in  the  management  of  the  business.     Pro- 
vided, hoiuever,  that  in  sales  of  land,  by  license  of  court,  for 
payment  of  debts,  commissions  shall  not  be  allowed  on  any 
larger   amount   of  the    proceeds,  than   the  sum  actually  ap- 
plied in  payment  of  debts.     And  provided  also,  that  nothing  rroviso  as  to 
in  this  section  contained  shall  prevent  any  executor  or  admin-  i84V^''i"'^'*i9^ 
istrator  from  retaining  for  necessary  charges  and  disbursements  1852',  c.  158. 
in  the  management  of  the  estate. 

39.  Any  surety   on  the  bond  of  an  executor  or  administra-  Sureties  of 
tor,  who  shall  be  in  danger  of  sustaining  loss  by  his  suretyship,  n^'r^  ia"daD^er 
may  exhibit  on  oath  his  petition  to  the  county,  or  superior  ofioss  may  ° 
court,  or  to  the  court  of  equity,  of  the  county  wherein  the  said  proceedings 
bond  was  given,  setting  forth  particularly  the  circumstances  of  tiierefor.-%. 
his  case,  and  praying  that  such  executor  or  administrator  may  fi  32.*"'  ^'  ^"' 
be  removed  from  his  officB^  or  give  security  to  indemnify  the 
petitioner  against   such  apprehended  loss,  or  such  other  relief 

as  may  be  suitable  to  his  case  ;  and  thereupon  the  defendant 
shall  be  required  to  answer  the  premises  according  to  the 
course  of  the  court.  And  if  upon  the  hearing  of  the  case,  the 
court  shall  deem  the  petitioner  entitled  to  relief,  the  same  may 
be  granted  in  such  manner,  and  to  such  extent,  by  sequestra- 
tion of  the  property  or  otherwise,  as  to  the  court  shall  appear 
to  be  just.  Provided,  however,  that  the  administration  shall 
not  be  vacated,  unless  by  appointment  of  some  other  to  the 
office.  And  provided  also,  that  the  court  may,  from  time  to 
time,  pending  the  petition,  make  such  interlocutory  order  and 
decree  as,  without  injury  to  the  rights  and  remedies  of  credi- 
tors, may  tend  to  the  better  securing  of  the  petitioner. 

40.  When   part  of  the  executors  of  any  person  making  a  Lands  devised 
will  of  lands,  to  be  sold  by  his  executors,  die  or  refuse  to  take  *»  be  sold  by 

,1  ,,  ,      .    .    .  •'j.  ,  11   ,,  ,  ,.      ex'rs,  bv  wlium 

upon  them  the  admmistration  ;  or  when  all  the  executors  die,  tobesriid.— 
or  refuse  to  take  upon  them  the  administration  ;  or  when  there  ^^  ^■'^-  *^'  ^• 
is  no  executor  named  in  a  will  devising  lands  to  be  sold,  or  to 
be  sold  by  executors  ;  in  every  such  case,  such  executors  as 
qualify,  or  having  qualified  do  survive,  or  the  administrator  with 
the  will  annexed,  may  sell  such  lands ;  and  all  conveyances, 
made  by  such  executors  or  administrator,  shall  be  effectual  to 
convey  the  title  to  the  purchaser  of  the  estate  so  devised  to  be 
sold. 

41.  Every  person  who  shall  receive  goods  or  debts  of  any  Who  clmrge- 
person  dying  intestate,  or  any  release  of"a  debt  due  the  intes-  t^^,lfJ,ftH. 
tate,  upon  a  fraudulent  intent,  or  without  such  valuable  con- — K-S.c.  46,  s. 
sideration  as  shall  amount  to  the  value  or  thereabout,  (except  f^Z^^  '^''^'  '^' 
it  be  in  the  satisfaction  of  some  debt,  of  the  value  of  the  same 

goods  or  debts  to  him  owing  by  the  intestate  at  the  time  of 

his  decease,)  shall  be  chargeable  as  executor  of  his  own  wrong, 

so    far  as    such    debts    and  goods,  coming  to  his   hands,   or 

25 


290 


EXECUTORS   AND   ADMINISTRATORS.        [ChAP.    46. 


Executors  or 
admin'rs  of  ex- 
ecutors or  ad- 
min'rs, liable 
for  a  devastavit. 
— R.  S.  c.  46,  s. 
36. 

Right  of  action 
to  survive  to 
executors,  &c. 
— R.  S.  c.  46,  s. 


When  person- 
alty insufficient 
to  pay  debts, 
&c.,  executor, 
&c.,  may  sell 
real  estate. — 
1846,0.  l,s.  1. 

License,  how 
obtained. — 
1846,  c.  1,  s.  2, 
7. 


Sale  of  part  or 
whole  may  be 
licensed. — 
1846,0.1,8.  3. 


Heirs,  &c.,  to 
be  parties. — 
1646,  c.l,  s.  4. 


Wlien  petition 
mnv  be  heard. 
— 1646,  c.  1,  s. 


Terms  of  sale 
to  be  directed 
by  court. — 
1846,  c.  1,  s.  6. 


whereof  he  is  released,  will  satisfy,  deducting  all  just  debts 
owing  to  him  by  the  intestate,  and  all  other  payments  made 
by  him. 

42.  The  executors  and  administrators  of  persons,  who,  as 
rightful  executors,  or  executors  in  their  own  wrong,  or  as  ad- 
ministrators, shall  waste  or  convert  to  their  use  any  estate  or 
assets  of  any  person  deceased,  shall  be  chargeable  in  the  same 
manner  as  their  testator  or  intestate  might  have  been. 

43.  Executors  and  administrators,  and  executors  of  execu- 
tors, shall  have  actions  in  like  manner  as  the  first  testator  or 
intestate  might  have  had,  against  any  person,  liis  executors 
and  administrators,  in  all  cases  except  where  such  actions  be- 
ing commenced,  are  not  allowed  by  statute  to  be  revived  on 
the  death  of  a  party. 

44.  When  the  goods  and  chattels  of  any  deceased  person, 
in  the  hands  of  his  executor  or  administrator,  shall  be  insuffic- 
ient to  pay  all  his  debts  with  the  charge  of  administering  the 
estate,  his  executor  or  administrator  shall  sell  his  real  estate, 
upon  obtaining  a  license  therefor,  and  proceeding  therein  in 
the  manner  hereinafter  provided. 

45.  In  order  to  obtain  such  license,  the  executor  or  admin- 
istrator shall  present  to  the  county  or  superior  court  of  the 
county  in  which  he  qualified,  a  petition  setting  forth  the 
amount  of  the  debts  due  from  the  deceased  as  nearly  as  they 
can  be  ascertained,  and  the  amount  of  the  estimated  charges 
of  administration,  and  the  value  of  the  personal  estate ;  and 
if  it  shall  be  necessary  to  sell  a  part  only  of  the  real  estate, 
he  shall  also  set  forth  the  value,  descriptions,  and  conditions  of 
the  estate,  or  such  part  thereof  as  he  shall  propose  to  sell ;  and 
the  court  may,  in  all  cases  where  it  is  not  necessary  to  sell  the 
whole,  decide  and  direct  what  specified  part  of  the  estate  shall 
be  sold ;  and  he  shall  malce  affidavit  of  the  facts  stated  in  his 
petition. 

46.  K  it  shall  be  represented  in  such  petition,  and  shall  ap- 
pear to  the  court  that  it  is  necessary  to  sell  some  part  of  the 
real  estate,  and  by  such  partial  sale,  the  residue  of  the  estate, 
or  some  specified  part  or,  piece  thereof,  would  be  greatly  in- 
jured, the  court  may  license  a  sale  of  the  whole  estate,  or  such 
part  thereof  as  the  court  shall  think  necessary,  and  most  ben- 
eficial for  the  interest  of  all  concerned  therein. 

47.  No  such  license  shall  be  granted  until  the  heirs  and 
devisees,  or  other  persons  interested  in  said  estate,  shall  be 
made  parties  to  the  petition,  and  served  with  notice,  either 
actually,  or  by  advertisement  as  in  olhcr  petitions. 

48.  As  soon  as  all  the  parties  are  before  tlie  court,  the  court 
may  proceed  to  hear  the  petition  and  decree  the  sale  if  neces- 
sary, unless  such  cause  to  the  contrary  be  shown  as  may  in- 
duce the  court  to  refuse  it,  or  postpone  tlie  final  hearing  to 
another  term. 

49.  Whenever  the  court  may  decree  a  sale,  it  shall  be  made 
upon  such  terms  and  credit  as  the  court  may  direct,  and  the 


Chap.  46.]  executors  and  adjiinistrators.  291 

title  shall  be  made  to  the  purchaser  by  such  person  and  at 
such  time  as  the  court  shall  prescribe. 

50.  All  the  proceeds  of  the  sales  of  real  estate  which  may  Proceeds  of 
not   be    necessary   to    pay  debts  and  charges    of  administra- bj.rse"|°  tnbe 
tion,  shall  be  considered  real  estate,  and  as  such  shall  be  paid  ™^'  estate.— 
by  the  executor  or  administrator  to  such  persons  as  would  be       jC.  ,s.   . 
entitled  to   the  land,  had  it  not  been  sold ;  or  in  the  case  of 

feme  coverts,  invested  as  proceeds  of  sale  made  for  partition. 

51.  The  proceeds   of  sale  shall  be  assets  in  the  hands  of  ^"y'^^^^^^jf .^^, t° 
the  executor  or  administrator,  for  the  purpose  of  paying  debts  charges  of  ad- 
and  charges  of  administration,  and  applied  as  though  the  same  ^sTg^o'^i'T  o" 
were  the   proceeds  of  personal  estate ;  and  bonds   and  other 
obligations,  in  which  the  ancestor  hath  bound  his  heirs,  shall 

not  be  put  in  suit  against  the  heirs  or  devisees  of  the  deceas- 
ed, and  shall  be  considered,  in  the  payment  of  debts,  of  equal 
dignity  with  other  specialties,  bills,  promissory  notes,  and 
liquidated  accounts. 

52.  All  bonds  executed  by  administrators  or  executors,  on  Bonds  of  adm's 
and  after  the  first  day  of  February,  one  thousand  eight  hun-  cnri'ty  for  both' 
dred  and  forty-seven,  shall  be  deemed  and  taken  to  have  been  real  and  per- 
executed,  as  well  to  secure  the  performance  of  the  duties  im-  ^°°^  "^°®'^" 
posed  on  them  respecting  the  sale  of  real  estate  and  the  ad- 
ministration of  assets  received  therefrom,  as  those  required  of 

them  respecting  personal  assets  ;  and  the  court  to  whom  an 

application  is  made  for  license  to  sell  real  estate,  may,  if  they 

deem   it  proper,  require  an  additional  bond"  to  be  given  with  Additional 

good    security  in   a  sufficient  sum,  conditioned  for  a  faithful  required.— 

and  proper  administration  of  the  assets  received  from  a  sale  of  is*Si<=-ii  ^-i"- 

real  estate  ;  on  which  bond  the  same  remedies  may  be  had  as 

upon  the  original  bond  given  by  the  executor  or  administrator. 

53.  The  real  estate  subject  to  sale  as  hereinbefore  provided,  What  real  es- 
shall  include  all  the  deceased  may  have  conveyed  with  intent  be  sold.''^° 
to  defraud  his   creditors,  and  all  rights  of  entry  and  rights  of 

action,  and  all  other  rights  and  interests  in  lands,  tenements, 
and  hereditaments  which  he  may  devise,  or  by  law  would  de- 
scend to  his  heirs  ;  and  all  such  other  interests  in  real  estate 
as  would  be  liable  in  a  court  of  equity  to  be   applied   in  dis- 
charge of  his  debts.     Provided,  that   lands  so  fraudulently  con-  lonajhU  pur- 
veyed, shall  not  be  taken  from  any  one  who  purchased  them  chasers  with- 
for  a  valuable  consideration,  and  without  a  knowledge  of  the  is46,  c.  i,s.  ii. 
fraud. 

54.  Whenever  an  executor  or  administrator  shall  file  his  ■vvhatjudgm't 
petition  to  sell  land,  which  may  have  been  fraudulently  con-  5f  frandni™t 
veyed  as  aforesaid,  and  of  which  there  may  have  been  a  sub-  igjgT']"^,!'i2 
sequent  bona  fide  sale,  Avhereby  he  cannot  have  a  decree  of 

sale  of  the  land,  the  court  may  give  judgment  in  favor  of  such 
executor  or  administrator  for  the  value  of  the  land,  against 
all  persons  who  may  have  fraudulently  purchased  the  same  ; 
and  if  the  whole  recovery  shall  not  be  necessary  to  pay  the 
debts  and  charges  aforesaid,  the  residue  shall  be  restored  to 
the  person  of  whom  the  recovery  was  made. 


292  EXECUTORS   AND   ADMINISTRATORS.         [ClIAP.    46- 

Issue  to  try  55.    Whenever  the  land  which  is  sought  to  be  sold  shall  be 

when?— 1846     claimed  by  another,  under  any  pretence  whatsoever,  the  court 
c.  1,  s.  13.        may  order  an  issue  to   try  the  title ;  and  if  it  shall  be  found 
for  the  executor  or  administrator,  he  shall  have  his  writ  of  pos- 
session, and  a  decree  of  sale  accordingly, 
b^'dwi'^n^ii         ^^'   ^^'''•^"  ^'1  executor,  other  than  such  as  may  have  given 
censed  to  sell    bond  with  security,  is  licensed  to  sell  any  portion  of  the  real 
real  estate.—    ggf^^tg  fyj.  the  payment  of  debts,  he  shall  execute  a  bond  with 
'  good  and  sufficient  security,  payable  to  the  State  of  North 
Carolina,  conditioned  for  the  faithful  application  of  the  pro- 
ceeds of  sale  to  the  debts  of  the  testator ;  and  for  accounting 
and  paying  over  all  the  proceeds  of  sale  that  shall  remain  after 
payment  of  the  debts  and  charges  for  which  such  estate  may 
be   sold,   and  for  disposing  of  the   same   according   to   law; 
which   bond   may  be  put  in  suit  by   any  person  injured  by 
breach  thereof. 
Proceeds  of  all       57.   Whenever  an  executor,  or  administrator  with  the  will 

real  estate  to  t  ,,  i      ii         n  i        j_    j.      r  j.      r 

be  leo-al  assets,  annexed,  or  other  person,  shall  sell  real  estate  tor  payment  of 
— 1846,  c.  1,  s.  debts,  by  virtue  of  any  devise,  power,   or  trust,  contained  in 
the  will,  the  proceeds  of  sale  shall  be  deemed  legal,  and  not 
equitable  assets,  and  shall  be  applied  as  hereinbefore  directed 
in  the  discharge  of  debts,  any  distinction  in  said  will  to  the 
contrary  notwithstanding. 
Specific  devi-        58.  If,  upon  the  hearing  of   any  petition   for  the   sale  of 
lands  are  sold   real  estate,  the  com't  shall  decree  a  sale  of  any  part  that  may 
entitled  to  con-  have  been  specifically  devised,  the  devisee  shall  be  entitled  to 
1846  c.  iT.  16.  a  contribution  from  other  devisees,  according  to  the  principles 
which  govern  courts  of  equity  in  respect  to  contribution  among 
legatees  ;  and  children  or  issue  provided  for  by  sections  twenty- 
eight  and  twenty-nine  of  the  chapter  entitled  "  Wills  and  Tes- 
taments," shall  be  regarded  as  specific  devisees  in  such  contri- 
bution. 
Undevised  real      59^  When  any  part  of  the  real  estate  of  a  testator  shall 
chargeable        descend  to  his  heirs  by  reason   of  its  not  being  devised   or 
7c'!l'  ''®^,'^'~;,  disposed  of  bv  the  will,  the  undevised  real  estate  shall  be  first 

1846,  c.  1,  s.  17.  r^  ,  y  '  „     ,    ,  . 

chargeable  with  payment  of  debts,  in  exoneration  as  lar  as  it 
will  go  of  the  real  estate  that  is  devised,  unless  from  the  will 
it  shall  appear  otherwise  to  be  the  wish  of  the  testator. 
To  what  period      gQ.  The  mode  of  proceeding  against  the  real  estate  of  de- 
of  selling  realty  ceascd  persons  prescribed  by  this  chapter,  shall  be  in  use  in  all 
applies.— 1S46,  cases  where  the  will  may  have  been  proved,  or  letters  of  ad- 
■    '  ■    '     '    ministration  granted,  on  or  after  the  first  day  of  February,  one 
thousand  eight  hundred  and  forty-seven  ;  and  the  mode  of  pro- 
ceeding against  such  real  estate  in  use  on  the  fourteenth  day 
of  January,  one  thousand  eight  hundred  and  forty-seven,  shall 
be  in  use  in  all  cases  where  the  will  may  have  been  proved,  or 
letters  of  administration  granted,  prior  to  the  first  day  of  Feb- 
ruary, one  thousand  eight  hundred  and  forty-seven. 
Sales  by  heirs,       (jf.  ji^\\  sales,  conveyances,  or  alienations  of  any  lands  of  a 
years, &o., void  deceased  debtor,  made  by  any  devisee  or  heir  at  law,  within 
two  years  after  the  probate  of  his  will  and  qualification  of  the 


:^ 


Chap.  46.]     executors  and  administrators. 


29i 


r,  or  letters  of  administration  on  his  estate,  shall  be  as  to  creditors, 
to  the  creditors,  executors,  and  administrators  of  such  ^  ''  ''• "'  ®^'  ^" 


executor, 
void  as  to 
deceased  debtor. 

62.  Nothing  contained  in  this  chapter  shall  affect  the  right  fjs^j'  !!i'^°^_^'. 
of  dower.  c.  i,  s.20. 

63.  The  crops  of  every  deceased  person,  remaining  ungath-  ^/JJ^y^j'^!]^;^ 
ered  at  his  death,  shall  in  all  cases  belong  to  the  executor  or  shall  go  to  e'x'r', 
administrator  as  part  of  the  personal  assets,  and  shall  not  pass  |f;'i3'^f„;;°' '" 
to  the  widow  with  the  land  assigned  for  dower,  nor  to  the  de-  widow, 
visee  of  the  land  by  a  devise  of  the  land  to  him,  but  only 

when  such  intent  shall  be  manifest  and  expressed  in  the  will. 

64.  Whenever  process  may  issue  against  an  executor  who  Service  on  ab- 

',11/1  _L  1  J  sent  ex  rs  not 

may  not  have  given  bond,  and  the  same  cannot  be  served  upon  having  given 
him  by  reason  of  his  absence  or  concealment,  a  copy  thereof  ^ond^  ^^^^^^ 
shall  be  left  at  his  last  place  of  residence  ;  and  on  return  of  the  "37^' 
matter,  publication  for  six  weeks  in  some  newspaper  shall  be 
made  for  him  to  appear,  and  the  same  having  been  made  shall 
be  deemed  due  service  upon  him. 

65.  A  female  who  maybe  an  executrix  or  administratrix  Female  es^r^^^ 
shall  be  allowed  to  make  affidavit  to  her  inventory,  account  of  to'^mven'tory, 
sale,  and  account  current,  before  a  justice  of  the  peace,  Avho  ^^'ji^'^J'^'"'^  ^ 
shall  certify  the  same  to  the  court. 


Sect.  1.  Where  granted,  1  Ire.  345,  2  Dev.  73.  Executor  may  renounce,  1  Ire.  298,  8 
Ire.  Eq.  253,  1  D.  &  B.  Eq.  199.  Foreign  administrator,  5  Ire.  Eq.  365,  lb.  190,  8  Ire. 
Eq.  246,  2  Jones,  Eq.  51. 

Sect.  2.  To  whom,  Bus.  242;  appointee  of  next  of  hin,  1  Hay.  220,  1  Ire.  345.  Wlien 
void,  3  Ire.  557;  tcrong  county,  4  Ire.  Eq.  216.  Form  of  grant,  2  Dev.  360, 1  D.  &  B.  27. 
May  be  revoked,  3  D.'&  B.  65. 

Sect.  15.  Bond;  who  may  sue  on:  creditor,  1  Dev.  475,  2  Dev.  298;  next  of  fen,  6  Ire. 
397.     Their  assignee,  2  Hawks,  329. 

Sect.  16.  Return  of  joint  executors ;  notes,  2  D.  &  B.  Eq.  155,  8  Ire.  Eq.  137.  Fmal 
return ;  effect  of,  1  Dev.  Eq.  58. 

Sect.  18.  1  D.  &  B.  Eq.  199;  2  lb.  58;  7  Ire.  Eq.  235.  Sale  of  notes,  6  Ire.  Eq.  74, 
Bus.  Eq.  127. 

Sect.  21.  Dirpiily  of  debts:  justice's  judqment,  7  Ire  231;  rent,  4  Dev.  502;  covenant 
and  breach  of  trust,  2  D.  &  B.  Eq.  235.  D'evastaiyit,  1  Ire.  Eq.  9,  7  Ire.  Eq.  62.  Rule  in 
equity,  1  D.'&  B.  Eq.  46,  2  lb.  235. 

Sect.  22.  Adcertisement  in  newspaper,  2  D.  &  B.  Eq.  82;  must  be  strictly  complied  with, 
9  Ire.  135,  1  Jones,  Eq.  128,  2  D.  &  B.  Eq.  82. 

Sect.  24.  1  Ire.  66;  lb.  332;  7  Ire.  Eq.  127.  Account  how  taken,  1  D.  &  B.  Eq.  502, 
2  lb.  155,  lb.  287,  lb.  442,  2  Dev.  Eq.  137,  lb.  167,  6  Ire.  Eq.  341,  1  Jones,  Eq.  130.  UTio 
entitled  after  death  of  administrator,  4  D.  &  B.  139.  Refunding  bond,  5  Ire.  632;  with  one 
surety,  >}.  C.  T.  R.  238;  tender  of,  not  condition  precedent,  2  Hawks,  329.  Fxecutoi-  be- 
C077ies  guardian,  3  Dev.  529. 

Sect.  31.   6  Ire.  448;  1  lb.  36. 

Sect.  33.  10  Ire.  129;  11  lb.  65;  3  lb.  166.  Does  not  apply  to  suits  in  equity,  2  Ire. 
Eq.  269. 

Sect.  35.   Bus.  408;  8  Ire.  88. 

Sect.  37.   2  Ire.  Eq.  602;  2  D.  &  B.  Eq.  72;  7  Ire.  Eq.  55. 

Sect.  38.   11  Ire.  224;  2  D.  &  B.  Eq.  325;  lb.  442;  lb.  405;  1  Jones,  Eq.  326. 

Sect.  39.   3  Ire.  342. 

Sect.  41.    1 1  Ire.  215 ;  9  lb.  365 ;  5  lb.  444 ;  4  D.  &  B.  189 ;  3  Dev.  221 ;  Bus.  Eq.  170. 

Sect.  44.  MTiat  administrator  may  proceed  under  this  section,  11  Ire.  469;  what  he  may 
sell,  13  Ire.  57. 

25* 


294 


FENCES. 


[Chap.  48. 


■       CHAPTER    47. 

FAIRS. 

Section  I  Section 

1.  Fairs  appointed  by  county  courts.  3.  Inhabitants    to    liavo  free  liberty  of 

2.  Commissioners   appointed,  who  may  fairs. 

regulate  fairs.  | 

Fairs  appoint-       1-    TiiE   county   courts,  a  majority  of  the  justices  of  the 
conri'^  ''"^'y    county  being  present,   may  appoint  fairs   in   their  respective 
counties,  at  such  places  as  they  may  judge  most  proper  for 
the   convenience  of  the  inhabitants,  so  as  to  give  encourage- 
ment to  industry,  by  collecting  the  inhabitants  for  the  purpose 
of  bartering  and  selling  all  such  articles  as  they  may  wish  to 
dispose  of. 
Commissioners      2.    When   any  court  may  resolve  to  establish  a  fair,  they 
mayre'<mi'at'e"'  ^^^^  appoint  commissioners,  a  majority  of  whom  may  regu- 
fairs.  "  late  and  conduct  the  same  by  a  system  of   by-laws  for  the 

government  thereof,  to  be  approved  by  the  court  and  entered  ' 
of  record;  and  such  rules  being  consistent  with  the  law  of  the 
land   shall  be  as  valid  and  effectual,  as  if  they  had  been  ex- 
pressed by  act  of  Assembly. 
Inhabitants  to       3.    The  inhabitants  of  any  county  wherein  a  fair  may  be 
^^^f^?^ '2^^''"  established  shall  have  free  liberty  to  attend  the  same,  dispose 
S.  c.  47,  s'.  1,  2,  of,    and    buy  or  barter  the  articles  brought  thereto ;    subject, 
^'  nevertheless,  to  such  rules  as  the  commissioners  may  form  for 

the  regulation  thereof. 


CHAPTER    48. 


FENCES. 


Section 

1.  Planters    to    keep    sufBcient    fences 

around  cultivated  ground. 

2.  Damages  by  stocl;,  when  fence  is  suffi- 

cient, liow  recovered. 

3.  Injuries  to  stock  by  persons  not  hav- 

ing a  legal  fence,  how  recovered  for. 
i.  Penalty  on  slave  for  injuring  stock, 
without  order  of  his  manager. 


5.  On  appeal  from  justice's  judgment, 

trial  (/e  novo,  &c. 

6.  Dan    river    sufficient  fence.    North- 

west branch  of  Cape  I'"enr  not  suffi- 
cient. Penalty  for  using  north-west 
branch  ns  a  fence. 


ker'sufficient       ■""    ■^^'^'"y  P'^nter  shall   make   a  sufficient  fence   about  his 
fenTes.-K."s.   cleared  ground,  under  cultivation,  at  least  five  feet  high,  unless 
c.  48.  B.  1.        where  there  shall  be  some   navigable   stream  or  deep  water- 
course that  shall  be  sufficient,  instead  of  such  fence. 
Dainages  by         2.    Upon  complaint  made  by  any  person  to  a  justice  of  the 


Chap.  48.]  fences.  295 

peace,  of  any  trespass   or  damage  done  by  horses,  or  other  fence  is  suffi- 
stock,  upon   his  inclosed   grounds,   the    justice   shall   issue   a  j;|f^^';J^°J^jJ_''g 
summons,  directed  to  any  lawful  otiicer  of  his  county,  com-  I'^YsX'i- 
manding  him  to  make  known  to  the  owner  of  such  horses  or 
other  stock,  such  complaint,  and  the  time  of  trial ;  and  shall 
also  summon  two  freeholders  unconnected  with  either  party, 
to  appear  before  him ;  who,  after  being  sworn  by  the  justice, 
shall,  together  with  him,  view  and  examine  whether  the  com- 
plainant's fence  be  good  and  sufficient,  as  prescribed  in  the 
preceding  section ;  and  if  it  shall  appear  that  his  fence  is  good 
and  sufficient,  they  shall  ascertain  and  assess  what  damages 
he  has  sustained  by  means  of  such  trespass,  and  certify  the 
same  under  their  hands;  and  the  justice  shall  enter  judgment 
against  such  owner  for  the  damages  assessed,  and  issue  exe- 
cution therefor. 

3.  If  any  person,  or  the   slave   or   servant  of  any  person,  i",iimes  to 
shall,  with  gun,  dog,  or  otherwise,  unreasonably  chase,  worry,  sor^'UThavW 
maim,  or  kill  any  horse,  or  other  stock,  or  cause  the   same  to  n,  legal  fence, 
be  done,  when  trespassing  upon  his  inclosed  grounds,  where  foTL'^sT^ 
his  fence  shall  be  adjudged  insufficient,  the  occupant  of  the«,s-3.' 
premises,  on  complaint  being  made  to  any  justice  of  the  peace 

as  aforesaid,  shall  make  full  satisfaction  for  all  such  damages 
to  the  party  injured,  to  be  ascertained  and  recovered  as  pro- 
vided in  the  preceding  section. 

4.  If  any  slave,  without  the  order  of  his  manager,  shall  chase,  Penalty  on 
worry,  maim,  or  kill,  any  horse  or  other  stock,  trespassing  upon  ','''7tocf- 'v'u^ 
the  inclosed  grounds  cultivated  by  or  under  the  direction   of  "u!  Vrdcrr&o. 
such  manager,  he  may  be  apprehended  on  a  warrant  from  any  ~f  ^- "'  *^' 
justice  of  the  peace,  and  whipped  for  his  offence,  not  exceeding  ^" 
thu-ty-nine  lashes. 

5.  On  ajjpeals  from  the  judgment  of  a  justice  of  the  peace  On  appeal  from 
rendered  under  any  section  of  this  chapter,  the  trial  in  court  ■|,'^'.|,'''|;^'l^^"'^ 
shall  in  all  respects  be  de  novo;  and  the  parties  shall  be  per-  Tc'.iS%.i. 
mitted  to  plead,  and  the  issues  shall  be  made  up  as  in  actions 

of  trespass. 

6.  The  Dan  river,  from  the  town  of  Madison  to  the  Stokes  Dan  river  suffi- 
county  line,  is  declared  a  watercourse  sufficient  instead  of  a  No'rth-weTt 
fence  ;  and  the  north-west  branch  of  the  Cape  Fear  river,  bor-  branch  of  Cape 
dering  on  the  county  of  Brunswick,  is  declared  to  be  insuffi- J-ent.""' ""^ 
cient  for  a  fence;  and  all  persons   cultivating  lands   on   the '^'="«itv for 
north-east  side  of  the  said  north-west  branch,  who  shall  neglect  "Sanch  as 
to  inclose  the  same  with  a  sufficient  and  lawful  fence  shall  ^  fence.— R.  s. 
for  every  crop  attempted  to  be  made,  forfeit  and  pay  one  liun-  isoo'c.'er 
dred  dollars ;  one  half  to  the  persons  suing  for  the  same,  and 

the  other  to  the  poor  of  the  county. 


Sect.  1.   8  Ire.  229.    Plank)-  meansperson,  3  Ire.  606. 


296 


FORCIBLE   ENTRY   AND   DETAINER,         [ChAP.   40. 


CHAPTER    49. 


FORCIBLE  ENTRY  Ai^D   DETAINER. 


Section 

5.  Restitution  not  awarded,  if  party  has 
been  in  possession  tliree  years. 

6.  Proceediifgs  returned  to  superior 
court. 

7.  Justices  and  others  not  indictable  un- 
less acting  maliciously.  Court  may 
amend  all  defects. 


Forcible  entry 
indictable. —  R. 
S.  c.  49,  s.  1,6; 
5  R.  c.  8. 


Summary  rem- 
edy before  jus- 
tice for  forcible 
entry  and  de- 
tainer. 


Restitution 
made.— R.  S.  c. 
49,  s.  2;  15  R.  2, 
c.2;8H.0,c.9. 

Jurors  to  be 
summoned  by 
order  of  justice. 


Pen.alty  on  offi 
cer  anil  jurors 
for  neglect. — 
K.  S.c.  49,s.8 
3  H.  5,  c.  9. 


Penalty  on 
sheriff  and  otli 
ers,  failing  to 


Section 

1.  Forcible  entry  indictable. 

2.  Summary  remedy  before  justice   for 

forcible  entry  and  detainer.    Resti- 
tution made. 

3.  Jurors  to  be  summoned.    Penalty  on 

officer  and  jurors  for  neglect. 

4.  Penalty  on  sheriff  and  others  failing 

to  assist  justice. 

1.  None  shall  make  entry  into  any  lands  and  tenements,  or 
term  for  years,  but  in  case  wliere  entry  is  given  by  the  law; 
and  in  such  case,  not  with  sti-ong  hand  nor  with  multitude  of 
people,  but  only  in  a  peaceable  and  easy  manner:  and  if  any 
man  do  the  contrary,  he  shall  be  deemed  guilty  of  a  misde- 
meanor. 

2.  Where  any  person  shall  make  forcible  entry,  as  aforesaid, 
or  having  entered  peaceably  shall  hold  forcibly,  upon  com- 
plaint being  made  to  any  justice  of  the  peace,  the  justice  shall 
take  sufficient  power  of  the  county,  and  go  to  the  place  where 
the  force  is  made;  and  there,  or  at  some  other  convenient 
place,  according  to  his  discretion,  (whether  the  person  making 
such  forcible  entry,  or  holdhig  forcibly,  be  present,  or  else  de- 
parted before  the  coming  of  the  justice,)  he  shall  inquire  of  the 
forcible  entry  or  forcible  detainer  complained  of,  by  a  jury  of 
good  and  lawful  men  to  be  by  him  then  and  there  sworn  and 
nupanelled ;  and  if  the  jury  shall  find  the  force  as  charged, 
the  justice  shall  recognize  the  person  convicted  of  such  force 
to  the  ensuing  superior  court,  to  answer  any  indictment  that 
may  be  preferred  against  him;  and  the  justice  shall  cause  the 
land  and  tenements  or  term  for  years,  so  entered  or  held  as 
aforesaid,  to  be  reseized,  and  shall  put  the  party  turned  out  in 
full  possession  of  the  same. 

3.  When  complaint  shall  be  made  as  aforesaid,  the  justice 
shall  issue  a  precept,  directed  to  the  sheriff  or  other  proper 
officer  of  the  county,  commanding  him  to  cause  to  come  before 
such  justice,  at  such  time  and  place  as  shall  be  therein  men- 
tioned, sufficient  indifferent  freeholders,  to  inquire  as  aforesaid 
of  such  forcible  entry  and  detainer.  And  if  the  sheriff  or 
other  officer  shall  fail  to  execute  such  precept,  he  shall  pay  a 
fine  of  forty  dollars  for  every  default,  and  moreover  be  subject 
to  such  fine  for  contempt  as  the  justice  may  in  his  discretion 
impose  ;  and  each  juror  shall  be  subject  to  a  fine  of  twenty 
dollars  for  failing  to  attend  according  to  his  summons. 

4.  The  sheriff,  and  such  others  as'he  or  the  said  ju.stice  shall 
order  and  command  for  that  purpose,  shall,  upon  pain  of  im- 


Chap.  50.]  frauds  and  fradulent  conveyances. 


297 


pvisoiimeut,  go  and  assist  the  justice  in  arresting  the  offenders,  sRsistjustice.— 
and  also  in  causing  restitution  to  be  made  of  the  lauds  and  K.  S.  c.  49,  s. 4. 
tenements  or  term  for  years  entered  or  held  by  force  as  afore- 
said. 

5.  No  restitution,  upon  any  indictment  or  finding  of  forci-  Kesiitution  not 
ble  entry  or  holdhig  with  force,  shall  be  made,  if  the  person  party  has'been 
indicted  hath  had  the  occupation  or  been  in  quiet  possession  in  possession 
for  the  space  of  three  whole  years  together,  next  before  the  K.'s^c.'^Si^sTs. 
day  of  such  indictment  found,  and  his  estate  therein  not  ended 

or  determined,  which  the  party  may  allege  for  stay  of  restitu- 
tion; and  restitution  shall  stay  till  that  be  tried,  if  the  other 
party  will  deny  or  traverse  the  same ;  and  if  such  allegation 
be  found  against  the  person  indicted,  he  shall  pay  such  costs 
and  damages  to  the  other  party  as  shall  be  assessed  by  the 
judge  or  justices  before  whom  the  same  shall  be  tried,  to  be 
recovered  and  levied  as  in  other  actions. 

6.  Of  all  the  proceedings  before  the  justice  he  shall  make  a  Proceedings 
record,  and  return  the  same  to  the  superior  court  of  law  of  his  perio"  coiirt.— 
county,  to  be  kept  among  the  records  of  the  court.  K-  S.  o.  49, s.  7. 

7.  No  jvistice  of  the  peace,  juror,  witness,  officer,  or  party,  justices  and 
acting  in  any  proceedings  had  under  this  chapter,  shall  be  °'.Jjj^"^ ™^J^°' 
liable  to  indictment  for  any  error,  defect,  or  informality  in  form  less,  &c. 

or  substance  in  any  such  proceedings,  unless  it  appears  in  evi- 
dence that  the  justice,  juror,  witness,  officer,  or  party,  acted 
wrong,  wilfully,  and  of  malice;    and    the    superior  court,  to  Court  may 
which  the  proceedings  are  returned,  may  at  any  time  amend  fe'^t's.— 1848%. 
all  defects  in  form  or  substance  therein.  7i,  s.  i,  2. 


Sect.  1.  1  Jones,  119;  8  Ire.  315;  lb.  84;  2  lb.  127;  4  D.  &  B.  192. 
Sect.  2.  8  Ire.  15;  3  lb.  123;  1  lb.  325;  1  D.  &  B.  324;  1  Mur.  392. 


CHAPTER    50. 


FRAUDS   AND  FRAUDULENT  CONVEYANCES. 


Section 

1.  Conve_vances  of  lands  or  goods  made 

to  defraud  creditors,  void. 

2.  Conveyances  of  lands,  &o.,  to  defraud 

purchasers,  void. 

3.  Voluntary  conveyances  not  deemed 

fraudulent  as  to  creditors,  merely 
because  of  indebtedness  of  donors. 
Indebtedness  evidence  only  of  fraud, 
to  bo  left  to  the  jury. 

4.  Conveyances  bonajtile,  upon  good  con- 

sideration, valid. 

5.  Buna  fide  purchases  without  notice, 


Section 

under  deeds  made  on  illegal  consid- 
eration, valid. 

6.  Purchasers  of  estates  fraudulently 
conveyed,  to  have  relief  in  equity. 

T.  Proceeding  by  sci.  fa.  -yvhen  prop- 
erty of  debtor  is  fraudulently  con- 
veyed. 

8.  How  to  proceed  under  the  .«i.  f<i. 

What  decree  if  defendants  do  not 
appear;  or  appear  and  confess. 

9.  Proceedings,  when  defendant  denies 

the  facts  charged. 


298 


FRAUDS   AND   FRAUDULENT   CONVEYANCES.     [ChAP.    50. 


Suction 

10.  Proceedings  where  original  judgment 

is  given  by  a  justice. 

11.  Contracts  for  sale  of  land  and  slaves, 

and  leases  for  mining,  void,  unless  in 
■writing. 

12.  Gift  of  slave  void,  unless  in  writing 

and  attested.    Proviso  as  to  advance- 
ments to  children. 

13.  Sale  of  slave  not  in  writing  and  at- 

tested,   void,    unless    accompanied 
with  actual  deliverv. 


Skction 

14.  Persons  removing  debtors  to  hinder, 

delay,  or  defraud  creditors,  liable  for 
their  debts. 

15.  Contracts    charging   executors,  &c., 

personally,  or  any  person  with  the 
debt,  &c.,  of  another,  to  be  in  writ- 
ing. 

16.  Contracts  with  Clierokeo  Indians  to 

be  in  writing,  subscribed  by  two 
witnesses. 


Conveyancesof  1.  FoR  avoiding  and  abolishing  feigned,  covinous,  and 
m"deto'de-°  *  fraudulent  gifts,  grants,  alienations,  conveyances,  bonds,  suits, 
frf.i^dCTeciitors,  judgments,  and  executions,  as  well  of  lands  and  tenements,  as 
50,'s!i,  — 50e!  of  goods  and  chattels,  which  may  be  contrived  and  devised  of 
3i«-6;  isEiiz.  fraud,  to  the  purpose  and  intent  to  delay,  hinder,  and  defraud 
■   '  ■  ■  creditors  and  others  of  their  just  and  lawful  actions  and  debts. 

Be  it  enacted,  That  every  gift,  grant,  alienation,  bargain,  and 
conveyance  of  lands,  tenements  and  hereditaments,  goods  and 
chattels,  by  writing  or  otherwise,  and  every  bond,  suit,  judg- 
ment, and  execution,  at  any  tim£  had  or  made,  to  or  for  any 
intent  or  purpose  last  before  declared  and  expressed,  shall  be 
deemed  and  taken  (only  as  against  that  person,  his  heirs,  ex- 
ecutors, administrators,  and  assigns,  whose  actions,  debts,  ac- 
counts, damages,  penalties,  and  forfeitures,  by  such  covinous 
or  fraudulent  devices  and  practices  aforesaid,  are,  shall,  or  might 
be  in  anywise  disturbed,  hindered,  delayed,  or  defrauded,)  to 
be  utterly  void,  and  of  no  effect ;  any  pretence,  color,  feigned 
consideration,  expressing  of  use,  or  any  other  matter  or  thing 
to  the  contrary  notwithstanding. 

2.  Every  conveyance,  charge,  lease,  or  incumbrance  of  any 
lands  or  hereditaments,  if  the  same  be  made  with  the  actual 
intent  in  fact  to  defraud   such  person,   as   hath  purchased  or 

.  .  c.  50,  s.^2.  gi^g^j^  purchase  in  fee-simple,  or  for  lives  or  years,  the  same 
lands  or  hereditaments ;  or  to  defraud  such  as  shall  purchase 
any  rent  or  profit  out  of  the  same,  shall  be  deemed  utterly 
void  against  such  person,  and  others  claiming  under  him,  who 
shall  purchase  for  the  full  value  thereof,  the  same  lands  or 
hereditaments,  or  rents  or  profits  out  of  the  same,  without  no- 
tice before  and  at  the  time  of  his  purchase,  of  the  conveyance, 
charge,  lease,  or  incumbrance,  by  him  alleged  to  have  been 
made  with  intent  to  defraud  ;  and  possession  taken  or  held  by 
or  for  the  person  claiming  under  such  alleged  fraudulent  con- 
veyance, charge,  lease,  or  incumbrance,  shall  be  always  deemed 
and  taken  as  notice  in  law  of  the  same. 

3.  No  voluntary  gift  or  settlement  of  property  by  one  in- 
debted, shall  be  deemed  or  taken  to  be  void  in  law,  as  to  cred- 
itors of  the  donor  or  settler  prior  to  such  gift  or  settlement,  by 
reason  merely  of  such  indebtedness,  if  property,  at  the  time 

indebt'ednessof of  making  such  gift  or  settlement,  fully  sullicient  and  avail- 
donors,  able  for  l\y^^  satisfaction  of  all  his  then  creditors,  be  retained  by 


Convey.ances 
of  lancis,  &o., 
to  defraud  pur- 
chasers, void. 


-  ISiO 
s.  1,  2, 


Voluntary  con- 
veyances not 
deemed  fraud- 
ulent as  to 
creditors,  mere- 
ly because  of 


Chap.  50.]  frauds  and  fraudulent  conveyances.  299 

such  donor  or  settler;  but  the   indebtedness  of  the  donor  or  Indebte'lncss 
settler  at  sueh  time  shall  be  held  and  taken,  as  well  with  re-  or fS! to'b^ 
sjject  to  creditors  prior  as  creditors  subsequent  to  such  gift  or  loft  to  the  jury, 
settlement,  to  be  evidence  only  from  which  an  intent  to  delay,  "3^4°' '''  ^^' 
hinder,  or  defraud  creditors  may  be  inferred  ;  and  in  any  trial 
at  law,  shall,  as  such,  be  submitted  by  the  court  to  the  jury, 
with  such  observations  as  may  be  right  and  proper. 

4.  Nothing   contained  in   the   foregoing   sections    shall  be  Convemnces 
construed  to  impeach  or  make  void  any  conveyance,  interest,  good  cousiUer" 
limitation  of  use   or  uses,  of  or  in   any  lands  or  tenements,  f^tion,Taiui.— 
goods  or  chattels,  Z*0Ma/Je  made,  upon   and  for  good  consid- 4;_i3\  c!  si 
eration,  to  any  person  not  having  notice  of  such  fraud.  s.  6. 

5.  No  conveyance  or  mortgage    made  to  secure  the  pay- -^°™ /*  P'""" 
ment  of  any  debt  or  the  performance  of  any  contract  or  agree-  notice,  under 
ment  shall  be  deemed  void,  as  against  any  purchaser  for  valu-  deeds  made  on 
able    or    other   good    consideration  of  the   estate   or  property  eraFion,  valid. 
conveyed,  sold,   mortgaged,   or  assigned,   by  reason  that  the  —  i^'*^' <=• '''^■ 
consideration  of  such  debt,  contract,  or  agreement,  shall  be 
forbidden  by  law,  if  such  purchaser,  at  the  time  of  his  purchase, 

shall  not  have  had  notice  of  the  unlawful  consideration  of 
such  debt,  contract,  or  agreement. 

6.  Purchasers   of  estates   previously   conveyed   in   fraud  of  Purchasers  of 
creditors  or  purchasers,  shall  have  like  remedy  and  relief  in  len'tiy  coti- 
equity,  as  creditors  might  have  had  before  the  sale  and  pur-  veyeJ,  to  have 

,^       •'  °  '  relief  in  equity. 

chase.  ^    •' 

7.  Upon  any  judgment  being  rendered  in  a  court  of  record,  ^™%°'^^"i°g''^ 
if  the  plaintiff  or   his  agent  will   malce  affidavit  that  the  de- property  of 
fendant  hath  no   visible   property  to   satisfy  the  same,  or  on  jj!j^^°'','^^'jj'_"'^" 
which  an  execution  can  be  levied,  and  that  he  hath  good  rea-  veyed'.  —  K.  S. 
son  to  believe  that  the  defendant  has  fraudulently  conveyed  °-  ^^'  ^-  °- 
his  property  to  avoid  or  delay  the  payment  of  his  just  debts  ; 

or  that  some  other  person  is  in  possession  of  property  belong- 
ing to  the  defendant  and  conceals  the  same,  the  clerk  (at  any 
time  while  the  judgment  is  in  force)  shall  issue  a  scire  facias 
against  tlie  person  claiming  any  estate,  real  or  personal  under 
any  such  conveyance,  or  any  person  charged  in  the  afhdavit 
with  concealing  any  money,  goods,  or  other  estate  for  the  use 
of  the  defendant,  or  for  the  purpose  of  enabling  him  to  avoid 
or  delay  the  payment  of  his  just  debts;  in  which  he  shall  be 
commanded  to  appear  at  the  next  succeeding  term,  and  an- 
swer upon  oath  in  writing,  whether  he  holds,  or  is  in  posses- 
sion of,  or  claims  title  to  any  money,  goods,  or  other  estate, 
real  or  personal,  under  any  conveyance  made  by  the  defend- 
ant, or  others  for  him,  upon  any  secret  trust;  and  whether  he 
holds  or  is  in  possession  of,  or  was,  at  the  time  of  rendering 
said  judgment,  or  at  any  time  since,  any  money,  goods,  or 
other  estate,  under  any  secret  delivery,  to  hold  the  same  for 
the  use  of  the  defendant  or  any  other  person,  to  enable  him  to 
avoid  the  payment  of  his  just  debts. 

8.  The  sftVe /aaa*' shall  be  served  on  the  defendant  after  n°j;*°l^;^««d 
the   manner  of  process   in   equity,   and    the    defendant    shall 


300  FRAUDS   AND   FRAUDULENT   CONVEYANCES.     [ChAP.  50. 

Wlint  decree  if  answer  the  premises  on  oath.  If  he  shall  not  appear,  judg- 
not^  appear;  or  meiit /)ro  coiifesso  shall  be  entered  against  him;  and  if  he  ap- 
appear  and       pear  and  admit  that  he  holds,  claims,  or  has  title  to  any  estate, 

confess.  —  R.      =  c  xi  ^        1        r 

s.  c.  50  s.  7.  I'l  manner,  or  upon  any  ot  the  uses,  purposes,  or  trusts  afore- 
said, in  either  case,  the  court  shall  subject  the  same  by  proper 
decree  to  the  satisfaction  of  the  plaintiff's  debt,  and  moreover, 
may  decree  against  the  defendant,  personally,  for  any  money 
held  or  used  by  him,  and  for  any  damages  for  use,  waste,  and 
destruction  of  property  enjoyed,  committed  or  done  by  him, 
to  be  ascertained  by  a  jury  on  j)roper  issues. 
Proceedings,  9.    If  the  defendant  shall  deny  the   matters  charged  in  the 

nies'the  facts'^"  ^^^'''^/'^^'''^■^'  "''  '^"J'  °^  them,  or  shall  so  answer  the  same  that 
charged.  — R.  the  court  cannot  make  a  decree  against  him,  the  court,  if  the 

b.  c.  50,  s.  7.     plaintiff  may  rec[uire  it,  shall  direct  proper  issues  to  be  made 

up  and  tried,  and  shall  decree   on  the  matters  found  by  the 

jury,  as  to  right  and  justice  may  appertain. 

Proceedings  10.    Where  any  judgment  shall  be  given  by  a  justice  of  the 

TiuwLent^S^  peace,  and  the   plaintiff  shall  desire  to  proceed   against   the 

giveii  by  a, jus- defendant  or  others,  in  the  manner  specified  in  the  two  last 

jg ''j^ ''■''■ '^' sections,  he  may  make  an  affidavit  as  hereinbefore  directed 

before  any  justice,  and  thereupon  the  judgment  and  all  other 

proceedings  shall  be  removed  into  the  county  or  superior  court, 

as  the  plaintiff"  may  desire,  to  be  there  proceeded  upon  as  if 

the  judgment  had  been  rendered  in  that  court. 

Contracts  for        11.    AH  contracts  to  sell  or  convey  any  lands,  tenements,  or 

sale  ot  land  and  ,  ,.,  ,  •    j^         j_    •  •         ,< 

slaves,  and  hereditaments,  or  any  interest  in  or  concerning  them,  or  any 
leases  for  min-  slave;  and  all  leases  and  contracts  for  leasing  of  land,  for  the 
less' in  writing,  purpose  of  digging  for  gold  or  other  minerals,  or  for  the  pur- 
—  K-  ^-  "•  °^'  pose  of  mining  generally,  shall  be  void  and  of  no  effect,  un- 
44. '  '    '  less  such   contract  or  lease,   or  some   memorandum   or   note 

thereof,  shall  be  put  in  writing,  signed  by  the  party  to  be 
charged  therewith,  or  by  some  other  person  by  him  thereto 
lawfully  authorized,  except,  nevertheless,  leases  and  contracts 
for  leases  (other  than  those  above  named)  not  exceeding  in 
duration  the  term  of  three  years. 
Gift  of  slave  12.    No  gift  of  any  slave  shall  be  good  or  available  in  law, 

m'itin""ilud  at-  "uless  the  same  shall  be  made  in  writing,  signed  by  the  donor 
tested."  and  attested  by  a  credible  witness  subscribing  thereto.     Pro- 

advanc'emen'ts   videcl,  hoivcvcr,  that  when   any  person  dying  intestate  shall 
to  children.—   have  put  into  the  actual  possession  of  his  child  any  slave,  who 
.S.c.3(,s.i  .  gjjj^ii  ^p,^-,3J,^  i,^  ii^g  possession  of  the  child  at  the  time  of  the 
death  of  such  person,  such  slave  shall  be  considered  as  an  ad- 
vancement to  the  child,  and  be  regulated  liy  the  law  relating 
to  advancements  made  to  children  by  a  parent  in  his  lifetime. 
Saleof slave         13.    All  sales  and  conveyances  of  slaves  shall  be  in  writing, 
and'attTstod^   attested   by  a   credible  witness  subscribing  thereto,  or  otiier- 
void,  unless  .ac- wise  shall  be  void.     Provided,  however,  that  all  sales  of  slaves, 
with''actuaide-^°"^A/'^  made  and  accompanied  with  the  actual  delivery  of 
livery.  — It.  s.  the  slave  to  the  purchaser,  and  which  would  be  held  good  but 

c.  3,,s.  10.       £^,|.  j^i^p  provisions  contained  in  this  section,  shall  be  good  and 

valid  without  any  bill  of  sale. 


Chap.  50.]   frauds  and  fraudulent  conveyances.  301 

14.  If  any  person  shall  remove,  or  shall  aid  and  assist  in  Persons  remov- 
removing,   any  debtor  out  of  any   county  in   which  he  shall  |"i°,|e*j.'^'deiay, 
have  resided  for  the  space  of  six  months  or  more,  with  the  or  defraud 
intent,  by  such  removing,  aiding,  or  assisting,  to  delay,  hinder,  foruJdr'debts! 
or  defraud  the  creditors,  or  any  of  them,  of  such  debtor,  the  —  R.  S.  c.  so, 
person  so  removing,  aiding,  or  assisting  therein,  and  his  execu-  ^'  ^" 

tors  or  administrators,  shall  be  liable  to  pay  all  debts  which 
the  debtor  removed  may  justly  owe  in  the  county  from  which 
he  was  so  removed ;  and  the  same  may  be  recovered  by  the 
creditors,  their  executors  or  administrators,  by  an  action  on 
the  case. 

15.  No  action  shall  be  brought  whereby  to  charge  an  exec-  Contracts 
utor  or  administrator  upon  a  special  promise  to  answer  dam-  '^^glf'"^^''^^'^' 
ages  out  of  his  own  estate,  or  to  charge  any  defendant  upon  a  persouaiiy,  or 
special  promise  to  answer  the  debt,  default,  or  miscarriage  of  ^,^j-Jh'\'j[g™ebt 
another  person,  unless  the  agreement,  upon  which  such  action  &c.,ofanotlie'r, 
shall  be  brousrht,  or  some  memorandum  or  note  thereof,  shall  ?°3""V^'«'"„ 
be  in  writing,  and  signed  by  the   party  charged  therewith,  or  so,  s.  lo. 
some  other  person  thereunto  by  him  lawfully  authorized. 

16.  All  conti-acts  and  agreements  of  every  description  made  Contr.Tcts  with 
after  the  eighteenth  day  of  May,  one  thousand  eight  hundred  dianstobein 
and  thirty-eiffht,  with  any  Cherokee  Indian,  or  any  person  of  ^''""''"S>  ^"i'- 

„,  1  T     T  1  1        1  -ii  •        ii  I      1      1  r  scribed  by  two 

Cherokee    Indian    blood,    withm    the    second   degree,   tor   an  witnesses.— R. 
amount  equal  to   ten   dollars   or  more,  shall  be   void,  unless  S.  c.  so,  s.  ii. 
some  note  or  memorandum  thereof  be   made  in  writing,  and 
signed   by  such   Indian,  or   person   of  Indian  blood,  or  some 
other  person  by  him  authorized,  in  the  presence  of  two  wit- 
nesses, who  shall  also  subscribe  the  same. 


Sect.  1.  Fraud  a  question  of  law,  13  Ire.  132,  11  Ire.  339.  Deed  good  against  all  but 
creditors,  i  Ire.  102,  7  lb.  Eq.  21.  Creditor  must  establish  his  debt  by  judgment,  4  Ire.  S29, 
Bus.  Eq.  170,  1  Jones,  Eq.  328.  Fraud  what :  purchase  by  A.,  deed  to  B.  1  Ire.  553, 
deed  to  children  before  enactment  of  section  three,  7  Ire.  341 ;  indulgence  to  debtor,  1 1re. 
470,  9  Ire.  191,  lb.  365,  11  lb.  347,  lb.  339,  Bus.  105,  3  Dev.  12,  lb.  144,  4  Dev.  197,  1 
Jones,  559.  What  not  fraud,  1  Ire.  179,  5  lb.  169,  1  Jones,  413.  Bona  fide  purchaser, 
6  Ire.  Eq.  394. 

Sect.  2.  2  Mur.  171;  4  D.  &  B.  278;  2  Hay.  57.    Purchasers  of  chattels,  3  Mur.  429. 

Sect.  3.  Prospective  only,  10  Ire.  496.     Construction,  Bus.  Eq.  145,  1  Jones,  67. 

Sect.  4.  11  Ire.  89;  10  lb.  302;  8  lb.  340;  13  lb.  265;  4  D.  &.  B.  201;  1  lb.  29. 
Mortgagee  a  purchaser,  5  Ire.  91,  3  Dev.  105,  i  Ire.  149,  1  Jones,  Eq. 

Sect.  7.  Abates  with  original  action,  3  Dev.  27. 

Sect.  11.  12  Ii-e.  252;  lb.  285;  2  Dev.  289.  Sale  under  parol  autlwrity,  11  Ire.  359; 
under  trust  deed,  8  Ire.  455.  Specific  performance  in  equity,  1  Jones,  Eq.  277,  lb.  339, 
4  Ire.  Eq.  125.     Parol  trust,  1  Jones,  Eq.  184,  lb.  193,  6  Ire.  Eq.  511,  lb.  169. 

Sect.  12.  Who  a  creditor,  1  Jones,  182,  1  D.  &.  B.  221.  Removal  part  of  the  way, 
8  Ire.  260.     Defence:  ignorance  of  plaintiff's  debt.  Bus.  143.     Damages,  8  Ire.  26. 

Sect.  13.  To  pay  the  debt  of  another,  13  Ire.  86,  11  lb.  195,  lb.  298,  4  DeT.  261. 
Consideration  need  not  be  expressed,  1  D.  &  B.  103. 

26 


302 


GENERAL   ASSEMBLY. 


[Chap.  52. 


CHAPTER    51. 

GAJMING   CONTRACTS. 

Section  I  Section 

1.  Gaming  or  betting  contracts  void.  3.  Players  and   betters  competent  -wit- 

2.  Securities  for  money  or  property  lent  nesses. 

for  betting,  void.  | 

All  gaming  or      1.    AH  wagers,  bets,  or  stakes  made  to  depend  upon  any 

betting  con-        •  i       i    i_  i  i     . 

tracts  void.—  "^^^e,  or  upon  any  gaming  by  lot  or  chance,  or  upon  any  lot, 
E.  S.  c.  61.  chance,  casualty,  or  unknown  or  contingent  event  whatever, 
shall  be  unlawful;  and  all  contracts,  judgments,  conveyances, 
and  assurances  for  and  on  account  of  any  money  or  prop- 
erty or  thing  in  action  so  wagered,  bet,  or  staked,  shall  be 
void. 
Securities  for        2.  All  Contracts,  iudtrrnents,  conveyances,  and  assurances  to 

money  or  prop-  ^       ^  .  , ,  • 

erty,  lent   for '^^P^y  or  Secure  any  money,  or  property,  or  thing  m  action, 

betting,  void.    lent  or  advanced  for  the  purpose  of  such  wagering,  betting,  or 

~  ■   ■"■    ■    staking  as  aforesaid,  shall  be  void. 

Players  and  3.    No  person  shall  be  excused  or  incapacitated  from  con- 

betters  compe-  J.      ■  ,      ,.j-  •         .         1  •  ,  J,  . 

tent  witnesses.  lessing  or  testitying  touching  any  money  or  property,  or  thing 

in  action,  so  wagered,  bet,  or  staked,  or  lent  for  such  purpose, 
by  reason  of  his  having  won,  played,  betted,  or  staked  upon 
any  game,  lot,  or  chance,  casualty,  or  unknown  or  contingent 
event  aforesaid ;  but  the  confession  or  testimony  of  such  per- 
son shall  not  be  used  against  him,  in  any  criminal  prosecution, 
on  account  of  such  betting,  wagering,  or  staking. 


Sect.  1.  Elections,  12  Ire.  344. 


CHAPTER   52, 


GENERAL  ASSEMBLY. 


Sectioh 

1.  Elections  for  members  of  General  As- 

sembly, when  and  where  held. 

2.  Senatorial  districts,  of  what  counties 

composed. 

3.  House  of  commons   how  composed; 

members  how  elected, 

4.  Separate  places  of  election  established, 

and  discontinued  by  county  court. 

5.  Time  and  places   of,   advertised  by 

BhenS. 


Section 

6.  Inspectors  for  precincts  appointed  by 

county  court.  Neglect  to  act  a  mis- 
demeanor. 

7.  Clerk  to  furnish  a  list  to  sheriff,  who 

shall  notify  them.  If  not  appointed 
by  court,  or  they  refuse  to  act,  how 
supplied, 

8.  Boxes  for  receiving  tickets,  furnished 

by  shcriflF.  Tickets,  how  received 
and  put  into  boxes. 


Chap.  52.] 


GENERAL   ASSEMBLY. 


303 


Section 
9.  Voters,   how  to  give  in  their  tickets. 
List  of  voters  kept.      Boxes,   how 
opened  and  tickets  counted. 

10.  Voters  may  be  required  to  swear  to 

their  qualification.  Inspectors  to  be 
judges  thereof. 

11.  Polls,  how  made  up,  returned,  com- 

pared, and  elections  declared.  Pro- 
viso as  to  certain  counties. 

12.  Polls  in  senatorial  districts,  how  made 

up,  where  compared.  Penalty  on 
ofBcer  for  default — forfeiture,  and 
misdemeanor.  Polls  examined,  &c., 
in  presence  of  three  justices.  Tie 
election,  how  decided. 

13.  Pay  of  sheriff  for  comparing  polls  in 

senatorial  districts. 

14.  Vacancies  before  session  of  Assembly 

to  be  notified  to  governor  by  sheriff, 
under  pain  of  misdemeanor. 

15.  Members  resigning,  &c.,  to  notify  gov- 

emor. 

16.  Governor,  in  such  cases,  to  order  a  new 

election. 

17.  Elections  under  writ  from  governor  or 

speaker,  held  as  other  elections. 

18.  What  time  of  day  opened  and  closed. 

19.  List  of  votes,  on  request,  furnished  by 

sherifT  to  members  and  candidates. 
Penalty  for  neglect  of  duty  in  regard 
to  elections. 

20.  When  no  sheriff  or  coronei-,  who  to 

hold  elections  and  make  returns. 

21.  JIusters  not  to  be  on  days,  nor  armed 

men  assembled  at  places,  of  election. 
Penalty.  | 

1.  The  election  for  members  to  the  senate  and  house  of 
commons  of  the  General  Assembly,  shall  be  held  for  the  re- 
spective districts  and  counties,  at  the  places  where  they  are 
now  held,  or  may  be  directed  hereafter  to  be  held,  in  manner 
as  hereinafter  prescribed,  on  the  first  Thursday  in  August,  in 
the  year  one  thousand  eight  hundred  and  fifty-six,  and  every 
two  years  thereafter. 

2.  Until  the  first  session  of  the  General  Assembly,  which 
shall  be  held  after  the  year  eighteen  hundred  and  seventy-one, 
the  senate  shall  be  composed  of  members  to  be  elected  from 
the  several  districts  hereinafter  named,  that  is  to  say :  The 
first  district  shall  consist  of  the  counties  of  Pasquotank  and 
Perquimans;  the  second,  of  Camden  and  Currituck;  the  third, 
of  Gates  and  Chowan ;  the  fourth,  of  Tyrrell  and  Hyde  ;  the 
fifth,  of  Northampton ;  the  sixth,  of  Hertford ;  the  seventh,  of 
Bertie;  the  eighth,  of  Martin  and  Washington;  the  ninth,  of 
Halifax ;  the  tenth,  of  Edgecombe ;  the  eleventh,  of  Pitt ;  the 
twelfth,  of  Beaufort ;  the  thirteenth,  of  Craven ;  the  fourteenth, 
of  Carteret  and  Jones;  the  fifteenth,  of  Greene  and  Lenoir: 


Section 

22.  Bribeiy  at  elections,  penalty  for. 

23.  Treating  at  elections,  penalty  for. 

24.  Jlerabers  giving  money,  &c.,  to  secure 

election,  expelled. 

25.  General  Assembly  to  meet  third  Jlon- 

day  of  November. 

26.  May  be  convened  by  governor  and 

council,  when.    When  by  the  coun- 
cil. 

27.  Members  to  convene. 

28.  Penalty  on,  for  failing  in  duty.    May 

be  remitted. 

29.  To  have  freedom  of  speech,  and  be 

protected  from  arrest,  &c. 

30.  Members  elected  returned  to  Assem- 

bly by  sheriff. 

31.  Persons  contesting  seats,  how  to  pro- 

ceed. 

32.  Witnesses  failing  to  give  evidence  in 

contested     elections,     penalty     on. 
Voter  shall  testify  how  he  voted. 

33.  Pay  of  witnesses  for  attending. 

34.  Private  laws,  proceedings  to  procure 

the  passage  of. 

35.  Acts  of  \ssembly,  when  to  take  effect. 

36.  Journals  of,  deposited  in  oiEce  of  seo- 

retaiy  of  State,   who  shall  certify 
copies,  &o. 

37.  Principal  clerks  to  hold  office  till  others 

are  appointed. 

38.  Two  door-keepers  appointed  by  keep- 

er of  Capitol,  or  secretaiy,  till  regular 
appointment.     Their  pay. 

39.  Grave-stones  provided  for  members, 

interred  in  Raleigh. 


Elections  for 
members  of 
General  As- 
sembly, when 
and  where 
held.— R.  S.  c. 
52,  s.  1. 


Senatorial  dis- 
tricts, of  what 
counties  com- 
posed.—1842, 
c.  27;  1852,  c. 
158. 


304  GENERAL   ASSEMBLY.  [ChaP.    52. 

the  sixteenth,  of  New  Hanover ;  the  seventeenth,  of  Duplin ; 
the  eighteenth,  of  Onslow;  the  nineteenth,  of  Brunswick, 
Bladen,  and  Columbus ;  the  twentieth,  of  Cumberland ;  the 
twenty-first,  of  Sampson  ;  the  twenty-second,  of  Wayne ;  the 
twenty-third,  of  Johnston;  the  twenty-fourth,  of  Wake;  the 
twenty-fifth,  of  Nash;  the  twenty-sixth,  of  Franklin;  the 
twenty-seventh,  of  Warren ;  the  twenty-eighth,  of  Granville  ; 
the  twenty-ninth,  of  Person  ;  the  thirtieth,  of  Orange ;  the  thir- 
ty-first, of  Alamance  and  Randolph;  the  thirty-second,  of 
Chatham;  the  thirty-third,  of  Moore  and  IMontgomery;  the 
thirty-fourth,  of  Richmond  and  Robeson;  the  thirty-fifth,  of 
Alison  and  Union  ;  the  thirty-sixth,  of  Guilford ;  the  thirty- 
seventh,  of  Caswell;  the  thirty-eighth,  of  Rockingham;  the 
thirty-ninth,  of  Mecklenburg;  the  fortieth,  of  Stanly  and  Ca- 
barrus ;  the  forty-first,  of  Rowan  and  Davie ;  the  forty-second, 
of  Davidson  ;  the  forty-third,  of  Stokes  and  Forsyth ;  the 
forty-fourth,  of  Ashe,  Surry,  Watauga,  and  Yadkin  ;  the  forty- 
fifth,  of  Wilkes,  Iredell,  and  Alexander ;  the  forty-sixth,  of 
Burke,  McDowell,  and  Caldwell ;  the  forty-seventh,  of  Lincoln, 
Gaston,  and  Catawba;  the  forty-eighth,  of  Rutherford  and 
Cleaveland ;  the  forty-ninth,  of  Buncombe,  Henderson,  Yancy, 
and  Madison ;  the  fiftieth,  of  Haywood,  Macon,  Cherokee,  and 
Jackson. 
House  of  Com-  3.  Until  the  first  session  of  the  General  Assembly  which 
p™'ed!"'mem™"  ^'^^^^  ^^  ^^^^'^  ^f**''"  the  year  one  thousand  eight  hundred  and 
bci-siiow  elect- seventy-one,  the  House  of  Commons  shall  be  composed  of 
lt'~isb2'c%.  members  elected  from  the  counties  in  the  following  manner, 
namely:  The  counties  of  Cumberland,  Granville,  Guilford, 
Chatham,  and  Wake  shall  elect  three  members  each ;  the 
counties  of  Davidson,  Edgecombe,  Halifax,  Iredell,  New-Han- 
over, Orange,  Randolph,  Alamance,  Anson,  Beaufort,  Bertie, 
Caswell,  Cleaveland,  Craven,  Duplin,  Forsyth,  Johnston, 
Mecklenburg,  Northampton,  Pitt,  Robeson,  Rockingham, 
Rowan,  Rutherford,  Sampson,  Warren,  Wayne,  and  Wilkes 
shall  elect  two  members  each ;  the  counties  of  Buncombe, 
Madison,  Surry,  Yadkin,  Ashe,  Bladen,  Burke,  Cabarrus, 
Catawba,  Cherokee,  Davie,  Gaston,  Gates,  Henderson,  Hert- 
ford, Hyde,  Lincoln,  Martin,  Moore,  Nash,  Onslow,  Pasquo- 
tank, Person,  Richmond,  Stanly,  Stokes,  Union,  Yancy,  Alex- 
ander, Brunswick,  Caldwell,  Camden,  Currituck,  Columbus, 
Carteret,  Greene,  Jones,  Lenoir,  McDowell,  Montgomery, 
Perquimans,  Tyrrell,  Washington,  Watauga,  Macon,  Hay- 
wood, Jackson,  Chowan,  and  Franklin  shall  elect  one  member 
each. 
Separate  places      4.    The  several  courts  of  pleas  and  quarter-sessions  shall 

of  election  es-    ,  ,  •      -x         i-   ^i        •       ,•  ,.    ,i  ,      i     . 

tabiisbed,  or     havc  power  (a  majority  of  the  justices  of  the  county  being 
JiscoiitiuM  by  present)  to  establish,  alter,  discontinue,  or  create  such  separate 

county  court.     ',  r    ^      i-        •      ii     ■  ^-  ,■  r  ,' 

— K.  a.  c.  52,    places  ol  election  in  their  respective  counties,  as,  from  time  to 
^-  2-  time,  they  may  deem  expedient,  thirty   days'   notice   having 

been  given  in  three  public  places,  and  at  the  court  house,  of 

the  intended  application  for  the  same. 


Chap.  52.]  general  assembly.  305 

5.  The  sheriffs,  or  other  returning  officers  of  the  respective  Time  and 
counties,  shall  advertise  the  time  and  places  of  election,  at  the  ^CTtfs^d'jjv'^" 
several  places  where  the  same  is  to  be  held,  twenty  days  be-  sheiifl'.— li.  s. 
fore  the  election.  '  c.62,s.3. 

6.  The  court  of  pleas  and  quarter-sessions  at  the  court  pre-  Inspectors  for 
ceding  each   election,  shall  appoint  one  justice  of  the  peace,  ypj!j]'[e"by 
and  as  many  freeholders  as  may  be  deemed  necessary,  as  in-  county  coui-t— 
specters  to   superintend   the    election,    at   the    several    places    '  ■°'  ■"'**■   " 
where  the  same  is  to  be  held ;  who  shall  attend  at  the  places 

for  which  they  are  severally  appointed,  on  the  day  of  election, 
and  shall  be  sworn  by  the  sheriff,  or  in  his  absence  by  some 
justice  of  the  peace,  to  conduct  the  election  fairly  and  impar- 
tially, according  to  the  constitution  and  laws  of  the  State  ;  and  fj^'i^'JI^gan'r 
in  default  of  acting  shall  be  deemed  to  be  guilty  of  a  misde- ' 
meanor. 

7.  The  clerk  of  the  court  of  pleas  and  quarter-sessions,  im-  ^I'^ji* '."jt"'" 
mediately  after  the  court  preceding  the  election,  shall  furnish  sheriff,  who 
the  sheriff  of  his  county  with  a  list  of  the  persons  appointed  41','^"/'°"*^^' 
inspectors  of  the  polls ;    and  the  sheriff  shall  notify  such  per- 
sons of  their  appointment,  at  least  twenty  days  before  the  day 

of  election.     If  the  court  fail  to  make  such   appointment,  or  If ""' «PPO'"'- 
may  not  have  appointed  a  sufficient  number  of  inspectors ;  or  they'^'refuTe'vo'^ 
if  those  appointed  shall  die  or  refuse  to  act,  then  the  sheriff,  •■'ct,  how^sup- 
with  the  advice  of  three  justices  of  the  peace,  or,  if  none  be  62,'^s'!'5r^''  ^' "' 
present,  of  three  respectaijle  freeholders,  may  appoint  inspect- 
ors to  hold  the  election,  who  shall  be  sworn  as  aforesaid. 

8.  The  sheriff  or  returning  officer,  on   the  day  and   at  the  Boxes  for  re- 
place for  holding  each  election,  shall  be  provided  with  small  "JSeaty'*' 
boxes,  one  for  receiving  the  ballots  for  the  senator,  and   the  sheriff. 
other  for  receiving  the   ballots  for  members  of  the   house    of  Tickets  how 
commons;    and  the  returning    officer  or    his  deputy   (which  puTinto boxes. 
deputy  shall  in  all  cases  be  sworn   before  proceeding  to  act)  — "•  S-  c.  52, 
shall  receive  the  tickets  in  presence  of  the  inspectors,  and  put  " 

each  ticket  in  its  proper  box;  and  all  the  boxes  shall  be  locked, 
or  otherwise  well  secured,  until  the  election  shall  be  finished. 
Provided,  that  if  no  returning  officer  or  his  deputy  shall  be 
present,  the  tickets  shall  be  received  by  one  of  the  inspectors 
in  the  presence  of  the  others,  and  put  into  their  proper  boxes. 

9.  Every  person  qualified  to  vote  shall  give  to  the  returning  Vo*ers,how to 
officer  in  presence  of  the  inspectors,  or,  in  the  absence  of  such  Uckets."^ 
officer,  to  one  of  the  inspectors,  a  ticket  rolled  up,  in  which 

shall  be  wTitten  the  name  or  names  of  the  person  or  persons 
for  wliom  he  intends  to  vote  ;  and  the  names  of  all  the  persons  i.i^t  of  voters 
for  whom  he  votes  in  the   commons'  box  shall  be  on  the  same  '^'^P'" 
ticket;  which  ticket  shall  be  put  into  the  proper  box,  and,  at 
the  same  time,  two  of  the  inspectors  shall  take  down  in  sepa- 
rate lists  the  name  of  every  person  voting,  distinguishing  those 
who  shall  vote  for  senators  in  one  list,  and  those  for  members 
of  the  house  of  commons  in   a   second;  and  when  the  election 
shall  be  finished,  the  returning  officer  and  inspectors,  in  pres-  Boxes,  how 
ence  of  such  of  the  electors  as  may  choose  to  attend,  shall  open  "'"""'''  ""'* 
26* 


306  GI^s'ERAL   ASSEMBLY.  [ChAP.  52. 

tickets  count-  the  boxes  oiie  after  another,  and  number  the  ballots  of  one  box 
9.7^-1838^0.^'  before  they  shall  open  another,  at  the  same  time  reading  aloud 
18-  the  names  of  the  persons  who  shall  appear  in  each  ticket;  and 

if  there  shall   be  two  tickets  rolled  up  together,  or  any  ticket 
shall  contain  the  names  of  more  persons  than  such  elector  has 
a  right  to  vote  for,  in  either  of  these  cases,  such  ticket  shall  not 
be  numbered  in  taking  the  ballots,  but  shall  be  void. 
req*uu4™to  ''^       ^^-    Every  person,  before  he  shall  be  admitted  to  give-bis 
swear  to  their   vote,  shall,  if  required  by  the  inspectors,  or  any  one  of  them, 
qualification,     gvi^ear  that  he  is  qualified  according  to  the  constitution,  and 
Inspectors  to     hath  Hot  before  voted  at  such  election  ;  and  the  inspectors  shall 
thereof;— R.  S.  have  the  sole  and  exclusive  right  to  judge  of  the  qualification 
c.  52,  s.  11.       of  voters,  except  when  there  is  an  equal  division  of  opinion 
between  them,  in  which  case  the  returning  officer  shall  de- 
cide. 
Polls,  how  II     Immediately  after  the  close  of  the  polls  at  any  place  of 

made  up,  re-        ,        .  •'  i  .  r  i 

turned,  com-  election,  a  coiTcct  statement  oi  the  number  given  lor  each  can- 
pared,  and  eiec-  didate,  and  also  the  names   of  the   persons  voting,  shall   be 

tions  declared.-  '  .  .  r  ,     ^       ,     i 

E.  S.c.  52,  s.  s.  made  out  and  signed  by  the  inspectors,  and  then  be  sealed  and 
—1840,0.27,    directed  to  the  sheriff;  and  the  same  shall  be  handed  by  some 
one  of  the  inspectors  appointed  for  the  purpose,  to  the  sheriff 
of  the  county  at  the  court  house,  on  the  next  day,  between  ten 
o'clock,  A.  iw.  and  four  o'clock,  r.  M. ;  on  the  returns  being  made 
to  the  sheriff  or  his  deputy,  he  shall,  in  the  presence  of  the  in- 
spectors who  carried  their  respective  polls,  proceed  to  add  the 
number  of  votes  returned  ;  and  the  persons  having  the  greatest 
number  of  votes  shall  be  deemed  duly  elected  :  should  any  two 
persons  have  an  equal  number  of  votes,  the  sheriff  shall  decide 
Proviso  as  to     by  ^jg  casting  vote  the  person  duly  elected.     Provided,  how- 
ties.  evet;  that  in  the  counties  of  Carteret,  Currituck,  and  Hyde,  the 

statement  aforesaid  shall  be  handed  to  the  sheriffs  of  said 
counties  on  the  first  Tuesday  after  the  election. 
riai'distric°r°"  l^.  The  provisions  contained  in  the  preceding  section  shall 
how  made  up.  be  applicable  to  all  elections  for  members  of  the  senate,  where 
the  senatorial  district  is  composed  of  not  more  than  one  county, 
as  well  as  to  elections  for  members  of  the  house  of  commons ; 
but  where  any  senatorial  district  is  composed  of  more  than  one 
county,  the  sheriff,  or  other  returning  officer  of  each  of  the 
counties  composing  such  district,  shall,  after  receiving  the  re- 
turns from  the  inspectors,  as  prescribed  in  the  last  section, 
me(!t  on  the  second  Thursday  in  August,  after  the  election,  at 
the  following  places  in  their  respective  districts,  for  the  jiurpose 
pired!  """"  of  comparing  the  polls,  namely  :  In  the  first  district,  at  Wood- 
ville,  on  Little  river;  in  the  second  district,  at  Indian  Town, 
Dr.  Marchant's  store ;  in  the  third  district,  at  the  house  of 
Thomas  J.  Miller,  in  the  county  of  Gates ;  in  the  fourth  dis- 
trict, at  the  house  of  Charles  McCleese,  in  the  county  of  Tyr- 
rell; in  tlie  eighth  district,  at  Jamesville,  in  the  county  of 
Martin ;  in  the  fourteenth  district,  at  J.  J.  Pellelcer's  INIills,  on 
Hadnot's  creek,  in  the  county  of  Carteret;  in  the  fifteenth  dis- 
trict, at  Kinston,  in  the  county  of  Lenoir;  in  the  nineteenth 


Chap.  52.]  general  assembly.  307 

district,  at  Wayman  Academy,  in  the  county  of  Brunswick ; 
in  the  thirty-first  disti-ict,  at  Liberty,  in  the  county  of  Randolph  ; 
in  the  thirty-third  district,  at  the  house  of  Daniel  Chisliolm,  in 
the   county  of  Moore ;  in  the   thirty-fourth   district,   at  John 
Mallory's,  in  the  county  of  Richmond ;  in  the  thirty-fifth  dis- 
trict, at  Lanesborough,  in  the  county  of  Anson  ;  in  the  fortieth 
district,  at  Mount  Pleasant,  in  the  county  of  Cabarrus;  in  the 
forty-first  district,  at  Hall's  Mills,  in  the  county  of  Davie ;  in 
the  forty-third  district,  at  Germanton,  in  the  county  of  Stokes ; 
in  the  forty-fourth  district,  at  the  house  of  John  Thompson,  in 
the  county  of  Surry ;  in  the  forty-fifth  district,  at  Taylorsville, 
in  the  county  of  Alexander;  in  the  forty-sixth  district,  at  Mor- 
ganton,  in  the  county  of  Burke ;  in  the  forty-seventh  district, 
at  Lincolnton,  in  the  county  of  Lincoln ;  in  the  forty-eighth 
district,  at  Rutherfordton,  in  the  county  of  Rutherford  ;  in  the 
forty-ninth  district,  at  Asheville,  in  the  county  of  Buncombe ; 
in  the  fiftieth  district,  at  Franklin,  in  the  county  of  Macon. 
Provided  ahvays,  that  if  any  accident  shall  happen  which  may 
prevent  any  returning  officer  from  meeting  on  the  day  afore- 
said, the  returns  shall  be  received  on  the  day  following.     And  ^^fo^VefouH; 
the  returning  officer,  failing  to  attend  at  the  time  and  place  —forfeiture 
above  mentioned,  shall  forfeit  and  pay  five  hundred  dollars,  to  j^g^^^of''^" 
be  recovered  in  the  superior  court  of  his  county,  by  any  person 
who  may  sue  for  the  same,  and  moreover  shall  be  deemed  to 
be  guilty  of  a  misdemeanor.     And  when  the  returning  ofiicers  ?°"^^jf™„ 
shall  be  convened  as  aforesaid,  the  polls  for  the  diflerent  coun-  presence  of 
ties  shall  by  them,  in  the  presence  of  three  justices  of  the  peace,  ttoee  justices. 
(or  if  they  cannot  be  conveniently  procured,  then  in  the  pres- 
ence of  three  freeholders  to  be   summoned  by  the  returning 
officer  of  the  county  where  they  shall  meet,)  be  examined  and 
compared ;  and  a  certificate  under  the  hands  and  seals  of  the 
returning  officers  shall  be  given  to  the  candidate  in  each  dis- 
trict, for  whom  the  greatest  number  of  votes  shall  have  been 
given.     But  if  two  or  more  candidates  shall  have   an  equal  Jo^y^dccS — 
number  of  votes,  the  said  officers  shall  determine  which  shall  K.  s.  c.  52,  s.  9. 
be  senator ;  and  if  no  decision  is  made  by  them,  then  they  shall  ^^1842*^0^ ''27' 
determine  the  same  by  drawing,  in  like  manner  as  the  grand-  s.'2;  ie52,  c. 
jury  IS  drawn.  ^  -.,  ■  . 

13.  Every  returning  officer  shall  be  allowed  two  dollars  and  ^f  comp'arilig 
a  half,  for  every  thirty  miles  travelling  to  and  from  the  place  of  poUs  in  seiuuo- 
comparing  the  polls,  and  the  same  sum  for  every  day  he  shall  \{'_  s.^cI'm,"! 
necessarily  attend  for  that  purpose,  and  also  his  ferriages,  which  10. 

shall  be  paid  by  the  treasurer  of  the  State  on  affidavit  made 
before  any  justice  of  the  peace. 

14.  If  any  person  elected  to  represent  any  county  or  district  ^"0  se?s?on  of 
in  the  General  Assembly  shall  die  before  the  meeting  thereof,  Assembly  to  be 
or  from  any  cause  shall  fail,  refuse,  neglect,  or  delay,  to  accept  "mai. by she^tf 
his  appointment,  the  sheriff  of  the  county,  in  which  the  person  umier  {xiiu  of 
elected  resides,  or  did  reside,  shall  notify  the  governor  of  the  "'j^'/'g '"■J,"°52_ 
same  forthwith ;  and  for  neglect  of  duty  herein,  he  shall  be  s.  12. 
deemed  to  be  guilty  of  a  misdemeanor. 


308  GENERAL   ASSEMBLY.  [ChaP.  52. 

s/»iiin"&Tto      ^^'    ^^  ^"y  person  elected  to  represent  any  county  or  district 
notiiyl'over-     in   the   General  Assembly   shall,  before   the  meeting  thereof, 
s^'sTis'.  ^" '''    resign,  refuse,  or  decline  to  accept  his  appointment,  he  shall 
immediately  notify  the  governor  in  writing  of  his  determination, 
^"ch^esto         ^^'    ■^"  ^^^^  "^  vacancies  that  shall  occur  by  death,  resigna- 
order  a  new      tion,  or  Otherwise,  before  the  meeting  of  the  General  Assembly, 
s''c"52  7u    ^^^  governor,  on  being  notified  as  aforesaid,  shall  issue  a  writ 
"of  election  to   the  sherifl'  or  sheriffs  of  the  county  or  district 
wherein  such  vacancies  shall  have  occurred,  commanding  him 
or  them  to  hold  an  election  for  a  member  of  the  General  As- 
sembly to  supply  such  vacancy,  at  a  certain  time  therein  to  be 
specified. 
wHrfrom""ov-      ■^'^"    E^'^ry  election,  held  in  pursuance  of  a  writ  from  the 
eruoi- 01- spSiik- governor,  or  by  virtue  of  any  writ  from  either  house   of  the 
er.hem  as  other  General  Assembly,  shall  be  conducted  in  like  manner,  as  the 

elections. — K.  ,,..,*;'.  ' 

S.  c.  62,  s.  15.   regular  biennial  elections,  so  far  as  the  particular  case  can  be 
governed  by  the  general  rules,  and  shall  to  all  intents  and  pur- 
poses be  as  legal  and  valid,  and  subject  the  officers  and  persons 
elected  to  the  same  penalties  and  liabilities,  as  if  the  same  had 
been  held  at  the  time,  and  according  to  the  rules  and  regula- 
tions prescribed  for  the  regular  biennial  elections. 
rvopenTdand      ^^-    Every  election  shall  begin  at  ten   o'clock,  a.m.  on  the 
closed.— R.  s.   day  appointed  therefor,  and  shall  close  at  sunset  the  same  day. 
Lis^t^ofVotes  ^^"    Every  returning  officer,  within  ten  days  after  tiie  elec- 

011  request  fur- tion,  shall,  at  the  request  of  any  person  elected  to  serve  in  the 
ifffto'ra'eii!bers  General  Assembly,  or  any  one  who  was  a  candidate,  cause  fair 
aii'd candidates,  copies  of  the  list  of  votes  and  the  number  of  ticket  ballots  for 
each  candidate  to  be  made  out  and  signed  by  the  officer,  and 
delivered  to  the  person  requesting  the  same,  or  to  his  order,  on 
Penalty  for       payment  of  two  dollars ;  and  if  any  officer  shall  refuse  so  to  do, 
?n?!^gard'^to"'^  or  shall  make  elections  in  other  manner  than  by  this  chapter 
elections.— R.    is  directed,  or  shall  neglect  or  refuse  to  make  returns  of  the 
S^  c.  52,  s.  17,   elections  by  him  made  or  taken,  the  officer  so  offending  shall 
forfeit  and  pay  five  hundred  dollars,  one  half  for  the  use  of  the 
State,  and  the  other  half  to  the  person  suing  for  the  same, 
.^^'""orone'r'"      ^0.    If  at  any  time  it  may  happen  that  there  shall  be  no 
who  to  hold   '  sheriff  in  the  county,  the  coroner  or  coroners  shall  hold  the 
makereturns.   elections  for  the  county ;  and  when  there  shall  be  neither  sheriff 
— R.  S.  c.  52,  s.  nor  coroner,  the   elections  maybe   held  by  some   respectable 
19.-1842,0.     freeholder  appointed  by  any  three  justices  of  the  peace  of  the 
county ;  who,  in  conducting  the  same,  shall  have  like  powers, 
be  under  the  same  directions  and  restrictions,  and  subject  to 
the  same  penalties  as  are  conferred  or  imjio.'^ed  ujioii  sheriffs; 
and  in  all  cases  where  any  sheriff'  holding  an  election  shall  die 
before  proper  returns  thereof  shall  be  made,  his  successor  shall 
make  the  same,  if  they  may  not  have  been  made  by  the  coroner. 

be  on°day°nor       ^^"    ^^  ^'^'^'^  ""*  ^"  '"^^^^"^  ^°  ^""'^  °^  ^''■'^^*  ^"^  regimental, 
armed  I'lieii  as-  battalion,  or  Company  muster  on  election  days,  or  to  assemble 

p^aceofelec-    '^''"'"^'i  "1^"  o"  the  day  of  election,  at  any  place  appointed  by 
tiun.  law  to  hold  elections  for  electors,  governor,  members  of  Con- 

s?c!'52'r2i.  S^^^^'  °''  members  of  the  General  Assembly,  under  the  penalty 


'.{» 


Chap.  52.]  general  assembly.  309 

of  one  thousand  dollars,  to  be  recovered  of  any  person  who 
shall  call  such  muster,  or  assemble  such  armed  men,  and  ap- 
plied one  half  to  the  use  of  the  informer,  and  the  other  half  to 
the  use  of  the  State. 

22.  If  any  person  shall  at  any  time  before  or  after  any  elec-  Bribery  at  elec- 
tion, either  directly  or  indirectly,  give  any  money,  property,  or  peUaity  for.— 
reward  to  any  elector,  or  to  any  county  or  district,  in  order  to  R-  s.  o.  62,  s. 
be  elected ;  or  to  procure  any  other  person  to  be  elected  a 
member  of  the  General  Assembly;  every  person  so  offending 

shall  forfeit  and  pay  four  hundred  dollars,  to  any  person  who 
will  sue  for  the  same. 

23.  If  any  person  shall  treat  with  either  meat  or  drink,  on  Treating  at 
any  day  of  election,  or  any  day  previous  thereto,  with  an  intent  penalty  for.— 
to  influence  the  election,  he  shall  forfeit  and  pay  two  hundred  K.  S.  c.  52,  s. 
dollars,  the  one  half  for  the  use  of  the  county,  and  the  other  to 

the  use  of  the  person  who  shall  sue  for  the  same. 

24.  If  any  person  elected  a  member  of  the  General  Assembly  J'^^™'^,^^'"^^  ^ll 
shall  by  himself  or  any  other  person,  directly  or  indirectly,  give,  to°secure  eieo-' 
or  cause  to  be  given  any  money,  property,  reward,  or  present  ^^'  I^P^gl'^j^ 
whatsoever ;  or  give,  or  cause  to  be  given  by  himself  or  another,  27.     '  ' 
any  treat  or  entertainment  of  meat  or  drink,  at  any  public 
meeting  or  collection  of  the  people,  to  any  person  for  his  vote, 

or  to  influence  him  in  his  election,  such  person  shall,  on  due 
proof,  be  expelled  from  his  seat  in  the  General  Assembly. 

25.  The  meeting  of  the  General  Assembly  shall  be,  bienni-  f^mbiy't^eet 
ally,  on  the  third  Monday  in  November;  and,  when  adjourned  third  Monday 
without  time  fixed  for  its  next  meeting,  shall  be  deemed  to  be  ^^k'^s^.'sT 
adjourned  sine  die,  or  until  it  may  be  sooner  convened  in  the  s.  26. 
manner  prescribed  in  the  following  section. 

26.  The  governor,  with  the  advice  of  the  council  of  State,  ^^^^^^^by"";^. 
may  convene  the  General  Assembly  before  the  time  appointed  eniorandcoun- 
as  aforesaid  for  its  meeting,  or  after  its  adjournment,  whenever  ^|^''J^ '^*^'''^'" 
it  shall  be  deemed  absolutely  necessary.     And  if,  at  any  such  wiieu  by  tiie 
time,  there  should  be  no  one  duly  authorized  to  exercise  the  l°ll''f_'^^/  ^' 
powers  of  governor,  then  the  council  of  State  may  so  convene 

the  General  Assembly. 

27.  Every  person,  elected  to  represent  any  county  or  district  Jo™ene!-^K.'° 
in  the  General  Assembly,  shall  convene  at  such  time  and  place  s.  c.  52,  s.  28. 
as  may  be  appointed  for  the  meeting  thereof,  on  the  first  day, 

and  attend  to  the  public  business  as  occasion  shall  require. 

28.  If  any  member  shall  fail  to  convene,  or  shall  neglect  to  J^-IH^gythSr 
attend  to  the  duties  of  his  appointment,  he  shall  forfeit  and  pay  dutie°. 

for  not  appearing  ten  dollars,  and  two  dollars  for  every  day  he 
may  be  absent  from  his  duty  during  the  session,  to  be  deducted 
from  his  pay  as  a  member.  Provided,  that  a  majority  of  the  ";}fJ'R."™o!' 
members  of  either  house  of  the  General  Assembly  may  remit  52,  s.  29. 
the  fines  and  forfeitures  aforesaid,  or  any  part  thereof,  where  it 
shall  appear  that  the  person  hath  been  prevented  from  attend- 
ing his  duty  by  sickness,  or  other  sufficient  cause. 

29.  The  members  shall  have  freedom  of  speech  and  debate  .l;;,l'"r4eeth, 
in  the  General  Assembly,  and  shall  not  be  liable  to  imjieach-  und  buprutect- 


310  GENERAL   ASSEMBLY.  [ChAP.  52. 

&c'!!r  i"^'''  ™^"*  °^  question,  in  any  court  or  place  out  of  the  General 
62^8. 30.  ■ '''     Assembly,  for  words  therein  spoken ;  and  shall  be  protected, 
except  in  cases  of  crime,  from  all  arrest  and  imprisonment,  or 
attachment  of  property,  during  the  time  of  their  going  to,  com- 
ing from,  or  attending  the  General  Assembly. 
edTeturned^to'      '^^'    '^^^  sheriff  of  every  county  and  district  shall  make  re- 
As'sem"blyV,°  *"™  t°  ^'''^    General  Assembly,  at  their  first  meeting,  of  the 
?52^s"li'^'   P^"^^*^"^  elected  in  his  county  or  district,  to  represent  the  in- 
■    '  ■     ■       habitants  in  either  house  of  the  General  Assembly. 
fetting'theTeat      ^l"    ^°  P'-''"'^o"  ^'^^l^  be  allowed  to  contest  the  seat  of  any 
of  a  member,    member  of  the  General  Assembly,  unless  he  shall  have  given 
ceed.-K^.'s^c.  ^°  ^'^^  member  thirty  days'  notice  thereof  in  writing,  which 
52,  s.  31.     '  '  must  state  the  particular  grounds  of  such  contest.     Ifthe  seat 
is  contested  on  account  of  the  reception   of  illegal  votes,  the 
notice  must  set  forth  the   number  of  such  votes,  by  whom 
given,  and  the  supposed    disqualifications ;  and  if  the    same 
is   contested  on  account  of  the  rejection   of  legal  votes,  the 
notice  must  give  the  names  of  the  persons  whose  votes  were 
rejected.     No   evidence  shall  be  admitted  to    show  that  the 
contestant  received  illegal  votes,  unless  he  shall  also  have  been 
notified  the  same  number  of  days,  and  in  the   same  manner. 
The  same  notice  of  time  and  place  required  in  taking  deposi- 
tions at  law,  shall  be  required  and  proved  on  the  investigation. 
J5^"^«sse^s  faU-  ^    82.    Any  justice  of  the  peace,  or  any  person  duly    author- 
dence  iiTon- '"  iz^d  to  take  depositions  to  be  read  before  courts  of  law,  may 
Hons'^  enalt     ^^^^  depositions  to  be  used   on   the  investigation,   and  may 
jons.pena  y    j^^^^g  subpcenas    for  witnesses,   which    shall  be    executed  by 
any  officer  authorized  to  execute  process.     And  if  any  witness 
shall  fail  to  appear,  and  give  his  deposition  according  to  the 
subpoena,  he  shall  forfeit  and  pay  to  the  party  causing  him  to 

v  ,  ,    be  summoned,  forty  dollars.     And   on   such  investigation  no 

Voter  compel-       .,  •     j.i  •  •      ji  /.  .  P    .       . 

led  to  testify     Witness  in  this,  or  in  the  case  of  any  other  contested  election, 

— RS^'^'sz's  ^h'^^l.  be  excused  from  discovering  whether  he  voted  at  such 

33.  ■   ■  ■    '  ■  election,  or  his  qualification  to  vote,  except  as  to  his  conviction 

for  any  offence  which  would  disqualify  him.     And  if  he  was 

not  a  qualified  voter,   he  shall  be  compelled  to   discover  for 

whom  he  voted  :  but  any  witness  making  such  discovery,  shall 

not  be  subject   to  criminal  or  penal  prosecution,  for  having 

voted  at  such  election. 

Pav of  witness-      33.    Any  witness  appearing  and  giving  testimony,  shall  be 

es  for  attend-        .  j.-i_i     i  ,  ■        <•  ,i  ,        P  •  •'      , 

ing.— K.  s.  0.    entitled  to  receive  Irom  the  person  at  whose  instance  he  was 

52" s.  31.  summoned,  ten  cents  for  every  mile  travelling  to  and  from  the 

place  and  his  ferriages,  to  be  recovered  before  any  justice  of 

the  peace  upon  the  certificate  of  the  commissioner. 

Private  laws.        34.    Any  person  who   may  desire   the  passage  of  a  private 

rroceertings  to  i  i     ii      •  j.-  c  i  •     ■    ,       ,•  i      "        ■■        •' 

procure  tiie      -l^w,  sliall  give  notice  ot  his  intention  to  make  application,  by 
S^sTsI'"     advertisement  in  some  newspaper  of  the   State  which  ciren- 
35.  ■"■     ''■    lates  in  the  county  where  the  applicant  resides,  or  in  which 
such  private  law  will  operate ;  or  by  advertisement  at  the  door 
of  the  court  house  and  three  other  public  jjlaces  in  such  coun- 
ty, for  at  least  thirty  days  before  the  application ;  and  when 


Chap.  53.] 


GOVERNOR   AND    COUNCIL. 


311 


any  private  bill  shall  be  introduced,  a  copy  of  such  advertise- 
ment, with  due  proof  of  its  having  been  so  published,  shall  be 
produced,  before  the  second  reading  thereof. 

35.  Acts  of  the    General   Assembly  shall  be  in  force  only  Acts  of  Assem- 
from  and  after  thirty  days  after  the  rise  of  the  session  in  which  H^-  when  to 
they  shall  have  passed,  unless  the  commencement  of  the  oper-  li.  s.c.  53,T 
ation  thereof  be  expressly  otherwise  directed.  ^''• 

36.  The  clerks  of  the   senate  and  house  of  commons,  as  Journals  of, de- 
soon   as   may  be  practicable  after  the    close  of  each  session,  [?°*''*l'' '"°^" 
shall  deposit  in  the  office  of  the  secretary  of  State  the  journals  who  shall  cer- 
of  the   General    Assembly;    and   the   secretary  of  State  shall  ^^"^gP'^-'-^^^- 
make  and  certify  copies  of  any  part  or  entry  of  said  journals  ;  37. 

and  may  take  for  the  copy  of  each  entry  made  and  certified, 
the  same  fee  as  for  the  copy  of  a  grant. 

37.  The  principal  clerk  of  each  house  of  the  General  As-  Principal  ci'ks 
sembly  shall  hold  his  office  for  the  term  of  two  years,  or  until  trn'^otiLr^an- 
another  is  appointed  ;  shall  be  present  at  such  time  and  place  pointed.— isjo, 
as  may  be  fixed  for  the  meeting  of  the  General  Assembly,  and  "'  ^^'  ^'^' 

on  the  first  day  thereof,  and  perform  the  duties  of  his  office. 

38.  The  keeper  of  the  capitol   (and  if  there  be  none,  then  Two  door- 
the  secretary  of  State)   shall  employ  two  suitable  persons  to  p^f,','("j|  j^P' 
place  the  two  halls  of  the  General  Assembly  in  order  and  wait  lieeperofcap- 
upon  the  members,  until  door-keepers  can  be  regularly  appoint-  u,"tir&c'''''''' 
ed.     And  the  persons  so  employed,  shall  be  allowed,  as  a  com-  Their  pay.— 
pensation,  in  full,  the  sum  of  three  dollars  each  for  their  daily  i^*"- <^- '^3,  s.  2. 
attendance  and  services. 

39.  The  governor  shall  have  placed,  at  the  grave  of  any  Grave-stones 
member  of  the  General  Assembly,  who  may  be  interred  in  the  Members,  in- 
city  of  Raleigh,  (whose  remains  are  not  intended  to  be  removed  teyeJ  in  Ra- 
by  his  friends,)  suitable  grave-stones,  containing  the  namcKes. '  ' 
of  the  deceased,  his  age  and  the  county  he  represented ;  and 

the  cost  thereof  shall  be  paid  by  the  treasurer,  on  the  warrant 
of  the  governor. 


CHAPTER    53. 


GOVERNOR  AND   COUNCIL. 


Section 

1.  Governor's  election  when  held,   and 

how  conducted. 

2.  Beturns  of  election,  when  and  how 

made  by  sheriff.  Returns  examined 
by  secretai-y  of  State.  If  not  regu- 
lar to  send  a  messenger  for  them. 

3.  Poll  books  to  be  filed  by  sheriff  v>-ith 

clerk  of  county  court.  Clerk  to  give 
receipt  for  them,  which  sheriff  shall 
send  to  secretary. 


Section 

4.  If  proper  returns  are  not  made  secre- 
tary to  inform  Assembly.  Proceed- 
ings thereupon. 

B.  Forms  of  returns  and  directions  fur- 
nished by  secretary. 

6.  Returns,  by  whom  and  when  opened. 

Election  how  determined. 

7.  Clerk  omitting  any  duty  about  the 

election  to  forfeit  ^  100. 

8.  Forfeitures  against  returning  officers 


312 


GOVERNOR  AND   COUNCIL.  [ChAP.    53- 


Sectios 

recovered  from  their  sureties  ;  also 
expenses  of  messenger. 
9.  Pay  of  shcrifl'  for  making  returns. 

10.  How  ascertained  and  paid. 

11.  Persons   contesting  election   of  gov- 

ernor, to  give  notice,  &c.     Proceed- 
ings thereon. 

12.  Depositions  in  contested  elections,  how 

taken. 

13.  Governor  to  reside  at  Raleigh. 

14.  A  house  provided  for  him, 
16.  Private  secretary  appointed. 


Section 

16.  Letter  book  kept  in  executive  office. 

17.  Council  to  meet  in  Raleigh. 

18.  Seals  for  State  and  courts  of  record 

procured  by  governor. 

19.  New  seals,  when  needed. 

20.  Seals,  how  prepared. 

21.  Paid  for,  &c. 

22.  Lost   State  seals  to  papers,  how  re- 

placed. 

23.  Thanksgiving  day  set  apart,  by  pro- 

clamation. 


Governor's 
election,  when 


1.    The  sheriff  of  every  county  shall  open  polls  at  the  several 
held  and  hoT  election  precincts  of  his  county,  for  the  election  of  a  governor  of 
conducted.-R.  the  State  of  North  Carolina,  on  the  first  Thursday  in  August, 
mo  c!'26  slT  one  thousand  eight  hundred  and  fifty-six,  and  biennially  there- 
after on  the  same  day ;  which  shall  be  conducted  under  the 
same  rules,  regulations,   and  restrictions,  as  are  elections  for 
members  of  the  General  Assembly. 
Eetums  of  2.    The  proper  returning  ofiicer  of  every  county  shall,  on  or 

and  how  made  before  the  first  day  of  October  succeeding  any  election  for  gov- 
by  sheriff.         emor,  transmit  to  the  seat  of  government  and  deliver  to  the 
secretary  of  State,  a  statement  of  the  votes  taken  in  his  county 
for  governor ;  which  statement  shall  be   made   from   the  poll 
books,  in  the  following  form,  namely  :  — 

State  of  North  Carolina, 

County. 
I,  sheriff  of  the  county  of  do  hereby  certify, 

that  at  the  elections  held  in  said  county  to  elect  a  governor  of 
the  State,  for  two  years  from  the  first  day  of  January  next,  at 
the  places  appointed  by  law  for  holding  elections  in  said 
county,  on  the  day  of  18     ,         votes  were  given 

for  ,  and  votes  for 

Given  under  my  hand  this  day  of  18     . 

Sheriff. 
And  shall  be  sealed  up  and  directed,  by  indorsement  upon  the 
sealed  packet  or  envelope  containing  the  said  statement,  to  the 
speaker  of  the  senate :  and  the  returning  ofiicer  shall  also  in- 
dorse upon  the  packet  a  memorandum  of  the  contents  thereof, 
in  this  form :  —  "A  statement  of  votes  taken  in  the  county  of 
,  at  the  election  for  governor,  held  on  the  day 

of  ;"  and  shall  sign  the  memorandum  with  his  name; 

which  returns  shall  be  delivered  by  the  secretary  of  State  to 
the  speaker  of  the  senate,  on  or  before  the  second  week  of  the 
session  of  the  General  Assembly  to  be  held   next  thereafter. 
And  such  returning  ollicer  shall,  on  or  before  the  said  first  day 
of  October  succeeding  such  election,  transmit  to  the  secretary 
of  State  a  duplicate  of  the  vote  for  governor  in  his  county, 
Returns  ex-       which  the  secretary  shall  keep  in   his  oflice  for  the  inspection 
sTCretary^f      of  any  person  wishing  to  examine  the  same:  and  the  secre- 
State.  tary  of  State  shall  immediately  after  receiving  such  original 


Chap.  53.]  governor  and  council.  313 

and  duplicate  statements,  proceed  to  examine  the  packets  con- If  not  i-cpilar, 
tainino'  the  orisfjnal  statements  and  ascertain  whether  the  same  ^'"'^'"l  "• '""s- 

>^  ,   ^  ,  senger  lor 

are  properly  indorsed  and  directed  :  and  he  shall  also  examine  them.— ir40,  c. 
the  duplicates,  to  ascertain  if  the  statements  are  duly  made  ^'^'g^  ^'j^^^*'^' 
out  in  the  form  required  by  this  section.  And  if  any  such 
packet,  containing  an  original  return,  shall  not  be  properly  ad- 
dressed or  directed,  or  shall  not  be  properly  sealed  up ;  or  if 
any  such  duplicate  return  shall  be  defective  or  informal,  the 
secretary  shall  forthwith  employ  some  suitable  and  discreet 
person,  as  a  messenger,  to  proceed  to  the  county  from  which 
such  return  shall  have  been  received,  and  require  from  the  re- 
turning otiicer  a  proper  and  formal  return,  duly  sealed  up, 
directed,  and  indorsed,  and  a  proper  duplicate :  which  return 
and  duplicate,  such  officer,  upon  the  demand  of  the  mes- 
senger, shall  forthwith  make  out  and  deliver  to  him  to  be  trans- 
mitted to  the  seat  of  government :  and  the  secretary  of  State 
shall  proceed  in  like  manner,  when  no  return  or  duplicate  shall 
be  transmitted  and  delivered  to  him  from  any  county :  and  he 
shall  furnish  every  such  messenger  with  a  written  authority  or 
commission  to  make  the  said  demand,  and  shall  sign  the  same, 
and  certify  it  under  the  great  seal  of  the  State,  which  the  gov- 
ernor shall  affix  upon  application  of  the  secretary. 

3.  The   sheriff  shall    forthwith  file  with  the  clerk   of  the  Poll  books  to 
county  court,  the  statements  and  poll  books,  returned  to  him  gi^ef'ff'Jj^ii 
by  the  returning  officers,  of  the  votes  taken  for  governor;  and  clerk  cf  county 
the  clerk  shall  receive  the  same  and   deposit  and  safely  keep  ^°,"^''*     ■ 

,1  •       1   •        /-r  1       •  I        -rr  •  r  ■         Clerk  to  give 

tnem  in  Ins  othce,  and  give  the  sherili  a  receipt  therefor,  stating  rec'pt  therefor, 
for  what  precincts  the  returns  and  poll  books  are  made.     And  T^'.'r';  *^"ff 

,,  1       'A'     1      11     J  •  1  r    r^  •  1  shall  transmit 

the  sherin  shall  transmit  to  the   secretary  of  State,  the  said  to  sec'y.— 1840, 
receipt  at  the  time  he  transmits  his  duplicate  of  the  votes.  ''•  ^^'  ^-  ■^• 

4.  Should  it  happen,  that,  at  the  meeting  of  the  General  If  proper  re- 
Assembly  next  after  any  election  for  governor,  there  shall  not  made.Tec'y 'to 
be  proper  returns  made   as  aforesaid    from   any  county,  the  inform  As- 
secretary  of  State  shall  immediately  communicate  the  fact  to  ^^"'^'J'- 

the  speakers  of  the  two  houses,  for  the  information  of  the 
General  Assembly,  who  shall  forthwith  cause  the  returning 
officer  to  be  summoned  to  appear  and  make,  complete,  or  cor- 
rect his  return,  as  the  case  may  require;  and  should  it  seem  to 
the  General  Assembly  advisable,  they  may  likewise  cause  the 
clerk  of  the  county  court  to  be  summoned  to  produce  the  re-  Proceedings 
turns  and  poll  books,  and  to  take  such  other  steps  as  may  is%i,\^°so^.  2. 
be  deemed  necessary  for  supplying,  counting,  and  completing 
the  returns. 

5.  The  secretary  of  State,  in  every  year  in  which  an  election  Forms  of  re- 
for  governor  may  be  held,  shall  cause  proper  forms  of  returns  '.""fons'fur-' 
to  be  prepared  and  printed,  and  send  copies  thereof  with  plain  nishedby 
directions  as  to  the  manner  of  indorsing,  directing,  and  trans-  c';3j'73^*^' 
mitting  the  same  to  the  seat  of  government,  to  all  the  return- 
ing oOicers  in  the  State,  at  least  thirty  days  before  the  time  of 
holding  such  elections. 

6.  The  speaker  of  the  senate,  in  the  presence  of  a  majority  of  Kcturns  by 

27 


314  GOVEENOK    AND    COUNCIL.  [ChAP.    53. 

■nhora  snd       the  tvvo  houses  of  the  General  Assembly  shall  open  the  returns 
w  enopene  .    j^j.  goy^rnor,  during  the  first  week  in  December  in  which  the 
General  Assembly  shall  be  in  session ;  and  upon  a  resolution 
or  the  suggestion  of  any  member  of  either  house,  such  house 
shall  proceed  to  examine  whetlier  the  person  returned  as  hav- 
Election,  how    Ing  the  largest  number  of  votes,  is  duly  elected.     Each  house 
k'! S.TssttTs.  f'^'^l^  separately  determine  all  such  cases ;  and  unless  a  ma- 
jority of  each  house  shall  declare,  that  the  person  returned  as 
having  the  largest  number  of  votes,  is  not  duly  elected,  then 
the  speaker  of  the  senate,  in  presence  of  both  houses,  shall 
pronounce  such  person  duly  elected. 
Clerk  omitting      7.    If  any  clcrk  of  the  county  court  shall  negligently  omit 
the  ctoion'to'  ^o  .^°  ^"^  perform  any  act,  matter,  or  thing,  by  this  chapter  re- 
pay $ioo  pen-   quired,  he  shall,  for  such  ofience,  forfeit  and  ])ay  one  hundred 
25fn?i842,'   tlollars,  to  be  recovered  by  the  attorney-general  for  the  use  of 
c.  30,  s.'4.     '    the  State,  on  motion  in  the  superior  court  of  law  of  the  county 
of  Wake,  ten  days'  previous  notice  in  writing  of  such  intended 
motion  being  given  to  the  officer. 
Forfeitures  8.    The  forfeitures  for  neglect,  or  refusal  of  a  sheriff,  coroner, 

i¥g officeTsre-"  °'"  •^th*'!'  returning  officer,  to  discharge  his  duties  according  to 
covered  from  the  provisions  of  this  chapter,  shall  be  recovered  against  his 
aiso'exprnses'  sureties  in  the  same  manner  as  against  the  officer:  and  when 
of  me^sseuger.  any  messenger  shall  have  been  employed  in  manner  hereinbe- 
—1^842,  c.  30,  £^j,g  (jii-ep^gj]^  ^hg  expenses  of  his  employment,  certified  by  the 
secretary  of  State,  shall  be  taxed  and  allowed  as  costs  in  the 
recovery. 
Pay  of  sheriff  9.  The  sheriff,  or  returning  ofliicer  shall  be  entitled  to  two 
turns.— Sfs-'^c.  dollars  and  a  half  for  every  day  he  may  be  necessarily  cn- 
63,  s.  13.  gaged  in  making  the  returns,  and  in  travelling  to  and  from 

the  city  of  Raleigh,  by  the  most  usual  road  from  and  to  his 
residence. 
Howascertam-      10.    The  compensation  to  sheriffs  shall  be  ascertained  and 
E  S  c.^'S, r  certified    by  the  secretary  of   State;    and  the  same  shall   be 
!*•  passed  as  public  accounts,  and  paid  by  the  treasurer. 

Persons  con-         11.    When  any  person  shall  contest  the  election  for  governor, 
of'gOTernorlo"  °^  any  One  who  may  have  received  the  largest  number  of  votes 
give  notice,  &c.  according  to  the  returns  of  tlie  sherifl's,  such  person  shall  give 
him  notice  in  writing  of  the  intention,  and  the  specific  grounds 
upon  which  he  will  contest  the  election,  setting  forth  the  county 
or  counties  in  which  he  alleges  that  illegal  votes  were  given, 
Proceedings      Or  any  other  violation  of  the  law  or  constitution  having  rela- 
■s'Ts's  s  15    ^'°"  ^°  ^'^°  '^^■-'^  which  shall  have  taken  place,  at  least  thirty 
'  ^'     '   days  before  the  first  day  of  December  in  the  year  in  wliieh 
such  election  is  held,  and  also  in  one  or  more  newspapers  pub- 
Ushed  in  Raleigh ;  and  satisfactory  proof  of  such  notice  shall 
be  required,  before  the  General  Assembly  will  proceed  to  in- 
quire into  the  trutii  of  the  allegations.     Provided,  hourver,  that 
if  the  person  whose  election  is  contested  is  out  of  the   State, 
or  not  to  be  found  at  the  time,  thirty  days'  notice,  in  any  news- 
paper published  ill  Raleigh,  shall  be  deemed  sufficient. 
Depositions  in       12.    In  any  contest  under  the  preceding  section,  depositions 


Chap.  53.]  governor  and  council.  315 

may  be  taken  with  the  same  notice  of  time  and  place,  as  is  untested  eiec- 
required  in  taking  depositions  at  law,  and  before  such  persons  '',?.  — 'il!°s^  c!''' 
as  commissioners;  and  under  the  same  rules,  as  to  the  sum-53, s.  19. 
moning  and  attendance  of  witnesses,  as  are  prescribed  in  cases 
of  contested  elections  of  members  of  the   General  Assembly. 
And  if  the  party  cannot  be  personally  served  with  notice,  publi- 
cation thereof  for  the  space  of  fifteen  days,  in  any  newspaper 
published  at  Raleigh,  shall  be  deemed  sufficient  notice. 

1-3.    The   governor  shall  reside  permanently  at  the  city  of  Gov.  to  reside 
Raleigh,  during  his  continuance  in  office.  g_  c'Ya's.^ 

14.  A  convenient  and  commodious  dwelling-house,  together  A  house  pro- 
with  such  out-houses  as  shall  be  necessary,  shall  be  provided  ^'_'^g^J°53''""3_ 
for  his  accommodation. 

15.  He  shall  appoint  a  private  secretary,  who  shall  enter  in  Private  sec'y 
books  kept  for  that  purpose,  all  such  letters,  written  by  and  to  s^P^sg^s'.^.^' 
the  governor,  as  are  official  and  important;    and  such  other 

letters  as  the  governor  shall  think  necessary. 

16.  The  letter  book  shall  be  deposited  in  the  office  of  the  Letter  book 
executive    by   the    private    secretary,  and  there  carefully  pre-  uve' office.— °R. 
served  ;  and  the  governor  shall  produce  the  letter  books  before  S.  o.  53,  s.  5. 
the  General  Assembly,  whenever  requested. 

17.  Whenever  the  governor  shall  conceive  it  necessary  to  counoiitomeet 
convene  the  council  of  State,  the  meeting  shall  be  in  the  city  '°  ^'^l^'g'''''^^" 
of  Raleigh,  unless  invasion,  insurrection,  or  contagious  disease 

shall  render  it  advisable  to  call  them  elsewhere. 

18.  The  governor  shall  procure  for  the  State  a  seal,  which  Seals  for  Stnte 
shall  be  called  the  Great  Seal  of  the  State  of  North  Carolina,  ;!^,'^,'rp'''o,°'r. 
to  be  used  for  attesting  and  authenticating  grants,  proclama-  ed  by  govern'r. 
tions,  commissions,  and  other  public  acts,  in  such  manner  as  ^  .S.c.53,  s. 
may  be  directed  by  law,  and  the  usage  established  in  the  pub- 
lic offices ;  also  a  seal  for  every  court  of  record  of  the  State, 

for  the  purpose  of  authenticating  the  papers  and  records  of 
such  court. 

19.  Whenever  the  great  seal  of  the  State,  or  any  seal  of  aKewseais 
court  of  record,  shall  be  lost,  or  so  worn  or  defaced  as  to  ren-  Ej's?c.T3^^st9. 
der  it  unfit  for  use,  the  governor  shall  provide  a  new  one. 

20.  The  seals  thus  provided  shall  be  prepared  with  one  side  Seals,  how pre- 
only,  and  calculated  to  make  the  impression  on  the  face  of  the  ^"g'sT^io. 
grant,  commission,  record,  or  other  public  act;  and  when  new 

seals  are  provided,  the  former  ones  shall  not  be  used. 

21.  The  governor  is  authorized  to  issue  his  warrant  on  the  Paid  for,  &c.— 
treasurer  for  the  expense  of  procuring  said  seals;  and  the  same  R-S.c. 63,s. ii. 
shall   be    delivered    to    the    proper    officers,  who  shall  give  a 

receipt  therefor  and  be  accountable  for  their  safe  keeping. 

22.  In  all  cases  where  any  person  may  find  it  necessary  to  Lost  State  seals 
have  the  seal  of  the  State  put  again  to  any  public  paper,  other  XlaceiL— K^ 
than  a  grant  for  lands,  he  may  prefer  his  petition  to  the  gov-  S.  c.  53,s.  12. 
ernor  and  council,  who  shall,  if   they  shall  deem   the    same 

pro|ier,  direct  the  secretary  to  put  the  seal  thereto. 

2o.  The  governor  is  directed  to  set  apart  a  day  in  every  Thanksgiving 
year,  and    by  proclamation  give  notice  thereof,  as  a  day  of  day  set  apart 


316 


GUARDIAN   AND   WARD.  [ChAP.   54. 

i'ioif-i8«'"    f?^''"?"    ^"'^    P"^''^  thanksgiving  to  Almighty  God,  for  past 
Ees.         '      blessings,  and  of  supplication  for  his  continued  kindness  and 
care  over  us,  as  a  State  and  as  a  nation. 


CHAPTER    54. 


GUARDIAN   AND   WARD. 


Section 

1.  Fathers,  by  deed  or  will,  may  appoint 

guardians. 

2.  Superior  and  county  courts  to  have 

cognizance  of  matters  concerning  or- 
phans ;  to  appoint  guardians  and  take 
bonds.  Justices,  &c.,  liable  for  tak- 
ing insufficient  security.     Proviso. 

3.  Court  may  commit  the  person  to  one 

and  estate  to  another;  and  appoint 
yearly  sums  for  support  and  educa- 
tion. Commissions  to  tutor  on  dis- 
bursements only. 

4.  In  cases  of  divorce,  who  to  be  guar- 

dian of  the  children  and  their  estate. 

5.  Bonds,  how  payable;  remedy  on  them. 

6.  Clerk  to  record  the  n.imes  of  justices 

on  the  bench  accepting  bonds.  Pro- 
viso for  justices  dissenting. 

7.  Guardians    appointed   of  estates    of 

children  whose  fathers  are  alive. 

8.  One  bond  to  be  taken  if  wards  have 

property  in  common. 

9.  Clerk  of  superior  court.  Sec,  to  cer- 

tify appointment  of  guardians  to 
county  courts. 

10.  Bonds  renewed  triennially.     Clerk  to 

summon  guardians  failing  to  renew. 

11.  Guardian  to  render  account  of  ward's 

estate,  on  oatli. 

12.  Orphan's  court  to  be  held.    Accounts 

rendered  annually.  Clerk,  ex  officio, 
to  summon  defeulting  guardians. 

13.  Power  and  duty  of  courts  over  guar- 

dians abusing  their  trusts;  and  when 
they  or  sureties  likely  to  become  in- 
solvent. 

14.  Guardian  removed,  or  li.able  to  be,  to 

be  reported  in  certain  cases,  by  clerk, 
to  attorney-general  or  solicitor.  How 
proceeded  with. 

15.  Eecoiver  appointed  to  manage  ward's 

estate  under  directions,  &c. 

16.  Compensation  to  attorney-general  and 

solicitors. 

17.  Property,  how  obtained  from  receiver.  | 


Section 

18.  Gi-and-jui-y  to  present  orphans  with- 

out guardians,  and  all  abuses  of 
guardians. 

19.  Estates  of  orphans  without  guardians, 

to  be  secured,  &o. 

20.  Clerk's  fee  for  issuing  summons,  how 

paid. 

21.  Guardians  to  take  possession  of  wards' 

estates. 

22.  To  sell,  by  order  of  coui-t,  his  perisha- 

ble estate. 

23.  To  lend  out  money,  and  account  for 

interest  annually.  Bonds  to  bear 
compound  interest ;  maj'  be  assigned 
to  wards  on  settlement. 

24.  Slaves  and  stock,  when  to  be  kept  on 

ward's  land.  Proviso,  if  stock  be- 
comes too  large. 

25.  Land  and  slaves,  when  and  how  to  be 

rented  and  hired.  Houses,  fences, 
&c.,  to  be  kept  in  repair. 

26.  Sales,  &c.|  how  made. 

27.  Guardian  liable  for  suffering  ward's 

land  to  lapse,  or  be  forfeited  for 
taxes,  &c.  When  may  sell  timber, 
&c. 

28.  Allowed  disbursements  and  expenses, 

and  commissions. 

29.  Ward  residing  abroad  and  having  prop- 

erty m  the  State,  may  remove  it 
through  guardian. 

30.  By  petition  in  equity, 

31.  Power  of  courts  of  equity  over  or- 

phans, &c.,  not  abridged. 

32.  Estates  of  infants  sold  to  promote  their 

interest,  wlion,  &c. 

33.  Miinncr  of  making  sale,  and  applying 

and  securing  proceeds. 

34.  When  ward  is  indebted,  how  guardian 

to  sell  his  property.     Proceeds  to  be 

applied  as  assets  of  deceased  debtors. 
36.  Siuctics  of  guardians  in  danger  of  loss, 

how  relieved. 
36.  Female  guardians  may  sweai-  to  tUoir 

returns  before  justices. 


Chap.  54.]  guardian  and  wabd.  317 

I   1.    Where  any  father,  whether  of  fvill  age  or  a  minor,  shall  Fathers,  by 

nave  a  child  under  the  age  of  twenty-one  and  not  married,  jj™'^°'jp^'"j 

whether  born  at  the  time  of  his  death,  or  in  ventre  sa  mere,  he  gujirdians.— r. 

may  by  deed  executed  in  his  lifetime,  or  by  his  last  will  and  *" "'  ^*'  ^'  ^' 

testament  in  writing,  in  such  manner  and  from  time  to  time 

as  he  may  think  fit,  dispose  of  the  custody  and  tuition  of  his    ,'-^'' 

child,  for  and  during  such  time  as  he  shall  remain  under  the 

age  of  twenty-one  years  or  for  any  less  time,  to  any  person 

or  persons ;    and  every  such  disposition    shall   be    good    and 

elfectual  against  every  person  claiming  the  custody  and  tuition 

of  such  child ;  and  the  person  to  whom  such  custody  or  tuition 

shall  be  so  disposed  or  devised,  shall  have  the  same  powers, 

rights,  and  privileges,  and  be  subject  to  the  same  liabilities, 

rules,  and  regulations  as  other  guardians.  | 

2.  The  superior  courts  of  law,  and  fBe'  courts  of  pleas  and  Superior  and 
quarter-sessions,  within  their  respective  counties,  shall  have  to  ha^'cwiL- 
full  power,  from  time  to  time,  to  take  cognizance  of  all  mat-  ance  of  matters 
ters  concerning  orphans  and  their  estates,  and  to  appoint  p°imfs™'t°f,,p.'" 
guardians  where  none  have  been  appointed  by  the  father,  and  point piardians 
where  to  them  it  shall  appear  necessary;  and  shall  take  good  ^ 
security  of  all  the  guardians  by  them  appointed  for  the  estate 

of  the  orphans.     And  if  any  court  shall  commit  an  orphan's 

estate  to  the  charge  or  guardianship  of  any  person,  without 

taking  good  and  sufficient  security  for  tlie  same,  the  justices  Justices,  &c., 

or  judge  appointing  such  guardian  shall  be  liable  for  all  loss  i^^f^gy'^jJig^t 

and  damages  sustained  by  the  orphan  for  the  want  of  such  security. 

security  being  taken,  to  be  recovered  by  action  at  the  suit  of  g™"54'~2_ 

the  party  grieved.      Provided  alicays,  that  where  the  sureties 

were  good  at  the  time  of  their  being  accepted,  the  justices  or 

judge  shall  not  be  liable. 

3.  The  court  may  commit  the  tuition  and  custody  of  the  Court  may 
orphan  to  one,  and  the  charge  of  his  estate  to  another  person,  pe"™fto 'one 
either  when  the  guardianship  is  first  granted,  or  at  any  time  and  estate  to 
thereafter,  whenever  it  shall  appear  best  for  the  orphan,  and  ''"''™'^'"- 
most  conducive  to  the  proper  care  of  his  estate  and  his  suit- 
able nurture  and  education  so  to  do,  instead  of  granting  the 
general    guardianship  to  one  person:    and  in  such  cases  the  May  appoint 
court  shall  order  and  appoint  what  yearly  sums  of  money,  or  yearly  sums  for 

I      II    1  1       r  1  1  support  ana 

other  provisions  shall  be  made  lor  the  support,  nurture,  and  education, 
education  of  the  orphan.  And  the  said  court,  or  the  court  of 
equity  of  the  same  county,  may,  from  time  to  time  upon  ap- 
plication made,  reduce  or  enlarge  the  allowance  so  appointed, 
and  prescribe  the  time  and  manner  of  paying  the  same ;  and 
take  all  such  further  order,  as,  due  regard  being  had  to  the 
situation  of  the  orphan,  his  condition  in  life,  and  the  kind  and 
value  of  his  estate,  may  seem  just  and  proper.  And  all  pay- 
ments made  by  the  guardian  of  the  estate  to  the  tutor  of  the 
person,  according  to  any  such  order  or  appointment,  shall  be 
deemed  just  disbursements,  and  be  allowed  in  the  settlement 
of  his  accounts;  but  for  the  payment  thereof  by  the  one,  and 
the  receipt  thereof  bv  the  other,  merely,  no  commissions  shall  to  tutor  on  dis- 
27* 


318  GUARDIAN    AND    WARD.  [ChAP.    54. 

bursements  be  allowcd  to  cither;  but  may  be  to  him  disbursing,  and  only 

si.'lT,"'"'  '■  on  his  disbursements. 

In  cases  of  di-  4.    Wliciicver    parents,  divorced  from  the  bonds  of   matri- 

vorce,  wlio  to  mony,  or  from  bed  and  board,  simll  have  any  cliiid  under  the 

be  gunrdian  ol  •' '  '  .■',,. 

tlie  children      age  oi  twenty-one  years,  the  court  granting  the  divorce  may 
totes —Tsss"  c  commit  his  custody  and  tuition  to  tiie  father  or  mother,  as 
16, s.  1,2.    '     may  be  thought  best;  and  if  such  child  shall  be  entitled  to 
any  estate,  the  court  may  appoint  a  fit  and  proper  person  to 
take  the  care  and  management  thereof,  who  shall  enter  into 
bond  with  security  as  guardians  of  orphan's  estates,  and  shall 
be  regulated  in  like  manner  in  all  respects  ;  but  shall  not  have 
any  care  of,  or  authority  over,  the  person  of  such  child,  unless 
the  guardian  so  appointed  be  the  father  or  mother.     And  the 
court  may  commit  the  custody  of  the  infant  child,  in  the  first 
place,  to  one  of  the  parties  for  a  time  to  be  limited  by  the 
court ;  and  after  the  expiration  of  that  time,  to  the  other  party, 
and  so  toiies  quolies. 
Bonds  how  5.    All  bonds  taken  from  guardians  shall  be  made  payable 

edym^t'iilm  -  ^°  ^'^^  ^*^^*'^  °^  ^oxth   Carolina,  and  shall  be  acknowledged  in ' 
K."S.  c.  54,s.3.  court  and  recorded  ;  and  any  person  injured,  may,  at  his  own 
proper  costs  and  charges,  prosecute  a  suit  thereon,  and  recover 
all  damages  and  costs  which  he  may  have  sustained  by  rea- 
son of  the  breach  of  the  condition  thereof:  and  if  judgment 
shall  be  rendered  against  the  relator,  he  shall  pay  costs. 
Clerks  to  re-         6.    The  clerk  of  the  county  court  shall  record  and  enter  at 
of  justices'ra^  large  on  his  docket,  the  names  of  the  justices  of  the  court  who 
the  bench  ac-    shall  be  present  at  the  granting  of  any  guardianship,  and  ap- 
i'an  bonds."'"  "  proving  of  the   sureties  to  the  guardian    bond;  and  the  clerk 
shall  certify  upon  the  bond  the   names  of  said  justices ;  and 
no  justice   of  the  peace,  to  whom  any  guardianship  shall  be 
committed,  shall  be  permitted  to  sit  on  the  bench  at  the  time 
Proviso  for      ^^  '^^^  appointment.     Provided  always,  that  any  justice  of  the 
justices  not  as-  peace,  present  and  not  concurring  in  the  grant  of  such   guar- 
ctM^f-'T^  ^"  diauship,  or  in  the  acceptance  of  the  sureties,  may  require  it, 
and  the  clerk  shall  record  on  the  minutes   and   certify  on  the 
bond,  that  such  justice  does   not  concur  in  the  appointment, 
or  in  the  acceptance  of  the  sureties  taken  ;  and  such  certificate 
and  entry  shall  exempt  the  justice   from  liability  on  account 
of  the  bond. 
Guardians  np-       7.    The  superior  and  county  courts  shall  appoint  a  fit  person 

pointed  "I  es-     ,       ,    I        ,|  '  ,  i_      c   ±\  i    I  i  i 

tales  of  chii-  to  take  tile  care  and  management  ot  the  estates,  real  and  per- 
dren  whose  sonal,  rights  and  credits  of  any  person  under  the  age  of  twenty- 
alive.— R.  S.  c.  0"c  years,  although  the  father  of  such  minor  may  be  living. 
45,8.5.  And  the  person  appointed  shall  enter  into  bond  with  security, 

as  required  of  guardians  of  orphans,  and  shall  be  governed  in 
all  res])ects  by  the  laws  relative  to  guardians  and  orphans  as 
to  the  property  and  rights  of  orphans,  but  shall  not  have  any 
care  or  authority  over  the  person  of  such  minor. 
One  bond  giv-  8.  When  the  same  person  is  appointed  guardian  to  two  or 
cnwhenwai\is  more  miuofs,  possessed  of  their  estate  in  common,  the  court 


Chap.  54.]  guardian  and  ward.  319 

may  take  one  bond  only  for  the  execution  of  his  trust,  upon  in  common.— 
which  each  of  the  minors  may  have  his  several  action.  R.  s.  c.  54,  s.  6. 

9.  Whenever  the  court,  other  than  the  court  of  pleas  and  clerk  of  sup'r 
quarter-sessions,  shall  ai)point  a  ffviardian  of  any  minor,  or  of '^^""':V'^<=-' t°^ 

1  ■  ,,,11  11  1  .  ,1  1  ^  [•ertityappomt- 

his  estate,  the  clerk  or  clerk  and  master,  as  the  case  may  be,  01  ment  ofguai- 
such  court,  shall  certify  the  appointment  to  the  county  court '''='"^'^™"'y 
of  the  county,  and  transmit  the  guardian  bond  to  that  court,  c.  54,  s.  8. ' 
there  to  be  recorded,  together  with  the  certificate  of  appoint- 
ment. 

10.  All  guardians  shall  renew  their  bonds  in  the  several  Bonds  renewed 
county  courts  every  three  years,  during  the  continuance  of  (^.||;"i"';y  ^un,. 
their  guardianship ;  and  the  clerks  of  the  several  county  courts  ni:'n  gu:inJians 
shall,  in  virtue  of  their  office,  issue  summons  against  every  neK.—lCs'c. 
guardian,  in  whatsoever  county  he  may  reside,  who   shall  fail  si,  s.  7. 

to  comply  with  the  requisitions  of  this  section  ;  and  upon  a 
return  that  the  guardian  is  not  to  be  found,  an  alias  shall  issue, 
and  if  upon  the  return  thereof  the  guardian  is  still  not  to  be 
found,  the  court  shall  remove  such  guardian  from  office,  and 
appoint  a  successor,  unless  the  former  guardian  shall  at  that 
court  renew  his  bond.  Provided,  that  no  prosecuting  officer 
shall  be  entitled  to  charge  a  fee  in  any  such  case. 

11.  Every  guardian,  at  the  next  county  court  afler  hjs  ap- Guardian  to 
pointment,  shall  exhibit  an  account  upon  oath  of  all  the  estate  of'ward's  es- 
of  his  ward,  which  he  shall  have  received  ;  and  every  guardian  tatc,  on  oath. 
shall  annually  exhibit  his  account  and  state  of  the  profits  and  To.''  ''^'°  ' 
disbursements  of  the  estate  of  his  ward  upon  oath  ;  and  such 
accounts  shall  be  entered  by  the  clerks  in  particular  books, 
provided  and  kept  for  that  purpose  only. 

12.  The  justices  of  every  court  of  picas  and  quarter-sessions.  Orphan's  court 
shall,  on  the  first  day  of  the   court  which  shall  be  held  next 

after  the  first  day  of  January  in  every  year,  hold  an  orphan's 
court  for  the  purpose  aforesaid ;  and  every  guardian,  whether 
appointed  by  deed  or  will,  or  by  any  court,  shall  exhibit  such 
account  as  aforesaid ;  and  the  court  shall  examine  into  all  ac- 
counts of  guardians,  so  exhibited;  and  the  clerk  of  the  court.  Accounts ren- 
under  the  penalty  of  one  hundred  dollars  to  be  applied  to  the  ''Y'^''  aunu- 
use  of  the  ward,  shall,  ex  officio,  issue  summons,  returnable  to  cierk,  ex  of- 
the   next  court,  against  all  guardians  wherever  resident,  who-^''"' '°j?"™: 
shall   fail  to  exhibit  their  accounts  as  aforesaid ;  and  if  any  guardians.— 
guardian,  being  summoned,  shall  wilfully  neglect  to  appear,  or  ^-  ^-  ''•  ^*'  ^■ 
obstinately  refuse  to  exhibit  such  account,  the  court  may  issue 
an  attachment  for  such  contempt,  and  commit   him  until   he 
shall  exhibit  the  same,  and  may  likewise  remove  him. 

13.  When  a  superior  or  county  court  shall  be  informed  that  Po-ncr  and 
any  guardian  appointed  by  them,  or  by  will  or  deed,  doth  waste  o"*'J'  guardians 
or  convert  the  money  or  estate  of  any  ward  to  his  own  use,  or  abusing  their 
in  any  manner  doth  mismanage  the  same  ;  is  about  or  intends  ^ilen  Ihev  or 
to  marry  him  or  her  in  disparaweraent,  or  neglects  to  educate  suretie-;  likely 

■   ■',     ■  ■■  1-       ^^      1  ■  I         ^  •  tohecoine  in- 

or  raaintam  any  ward  accordmg  to  his  or  her  degree  orcircum-  s„ivt.,it.— K.  S. 
stances  ;  or  where  any  such  guardian  or  his  sureties  are  likely  c.  u4,  s.  is. 
to  become  insolvent,  the  court  shall  have  power  from  time  to 


320  GUARDIAN   AND   WARD.  [ChAP.    54. 

time,  and  at  all  times  when  tlioy  think  proper,  to  make  and 
establish  such  rules  and  orders  for  the  better  ordering,  man- 
aging, and  securing  such  estates,  and  for  the  better  education 
of  and  maintaining  such  ward,  or  to  appoint  another  guardian, 
as  they  shall  think  fit  and  convenient. 
Guar.lianre-         2.4.    Where  any  guardian  shall  be  removed,  and  another  ner- 

moved,  or  ha-  ,,.  ,,'^         -ii  i  i-  ,iii 

h\e  to  be,  to  be  son   shall  not   be   apponited,  or  where   any  guardian  shall   by 
reported  in       reason  of  not  complying  with  his  duties   become  liable  to  be 

certain  cases,  j       ui  i  i  i  i-  i  ^    i  i 

by  clerk,  to      removed,  although   such  order  ot  removal  may  not  be  made, 
solicftor"' °'"     the  clerk  of  the  court  shall  certify  to  the  attorney-general,  or 
Howproeeeded  to  the  solicitor  of  the  circuit,  the  name  of  such  guardian  and 
Ti^sT^^**'  *^'  ^^'®  sureties,  and  the  proceeding  had  against  him  ;  and  the  at- 
torney-general or  solicitor  shall  forthwith  institute  a  suit  in  the 
court  of  equity  in  the  same  county,  by  bill,  petition,  or  other 
proper  proceeding  against  the  sureties  and  guardian,  for  an  ac- 
count of  the  guardianship,  and  for  securing  the  estate  of  the 
ward;  and  upon  such   bill  or  proceeding,  all  proper  accounts 
may  be  taken,  all  necessary  orders  made,  and  a  decree  had  ac- 
cording to  the  course  of  the  court,  as  well  against  the  sureties 
as  the  guardian. 
Eeceivernp-         15.    The  court  shall  have  power  upon  such  proceeding,  to 
manage  ward's  appoint  the  clerk  and  master,  or  other  discreet  person,  a  re- 
cstate  under      ceiver  to  take   possession  of  the  ward's   estate,  to  collect  and 
—iUi"T.'ii^'  receive  all  moneys  due  to  him,  and  to  pay  the  same  into  court, 
s-  2.  or  to  secure,  loan,  invest,  or  apply  the  same,  and  to  superin- 

tend and  direct  his  estate  for  the  benefit  and  advantage  of  the 
ward,  and  out  of  the  same  to  defray  the  charges  of  his  support, 
nurture,  and  education,  under  the  direction  and  subject  to  sueh 
rules,  orders,  and  directions  in  every  respect,  as  the  court  from 
time  to  time  may  malce  in  regard  thereto :  and  the  accounts  of 
such  receiver  shall  be  returned,  audited  and  settled,  from  time 
to  time,  as  the  court  may  direct,  making  sueh  allowances  to 
the  receiver  for  his  time,  trouble,  and  responsibility,  as  shall 
seem  reasonable  and  proper. 
Compensation        16.    The  attorney-general  or  solicitor  shall  prosecute  the  suit, 
and  soiic^tois— fiid  take  all  necessary  orders  therein,  and  for  his  services  the 
1846,  c.  41, s.  3.  court  shall  allow  him  reasonable  compensation  according  to 

the  circumstances  of  the  case. 
Property,  how       17.    Whenever  another  guardian  shall  be  appointed,  he  may 

obtamod  trora  i      ,  ....         ,      ,i  i   r  i  ■!  •  r 

receiver.—       ^PP'y  by  petition  to  the  court  lor  an  order  upon  the  receiver  to 
1M6,  c.  44,s.  4.  pay  and  possess  him  of  the  money,  estate,  and  elTects  of  his 
ward ;  and  in  case  no  such  guardian  shall  be  appointed,  then 
the  ward  on  his  coming  of  age,  or  in  case  of  his  death  his  ex- 
ecutor or  administrator  shall  have  the  like  remedy  by  petition. 
^'T'^fo7'°        18.    The  grand-jury  of  every  county  shall  annually  at  the 
ph!mrwm"iout  orphan's  court,  be  charged  with,  and  shall  present  to  the  court 
giiarriians,  and  jn  writing,   the    names   of   all    orphan    children    within    their 

all  abuses  of  .Pi     i  ..  i-  -r         i    i  i  ^    .. 

{guardians.— R.  county,  that   havc   not   guardians,  it   not   bound  out. to  some 
h. c.  64,  s.  19.    trade  or  employment;  and    also   all   abuses,  mismanagement, 

and  neglect  of  such  guardians  as  are  appointed  by  the  court  of 

their  county. 


Chap.  54.]      guardian  and  ward.  321 

19.  AVIienever  an  orphan  having  any  estate  shall  be  pre- Estates  of  or- 
sented  by   a  grand-jury,   for  whom   no   suitable   person  will  L'araisuis  tolie 
become   guardian,  the  clerk  of  the    court  shall    give    notice  ^Ltnroii,  S:c.— 
thereof  to  the  attorney-general  or  solicitor,  who  shall  apply  in  ^''*''' '^- ***• 
behalf  of  the   orphan,  to   the  court  of  equity   of  the    county 

where  such  presentment  is  made,  and  the  court  shall  proceed 
to  secure  and  manage  the  estate  of  such  orphan,  according  to 
the  provisions  of  the  foregoing  sections  of  this  chapter. 

20.  The  clerk's  fee  for  issuing  any  summons  against  guar-  ciei-k's  fee  for 
dians  for  their  supposed  defaults,  as  izr  this  chapter  directed,  p-.^..!:!  K.' s.^o. 
shall  be   paid  by  the   party  in  default.     Unless  the  guardian,  si,  s.  12. 
before  the  issue  of  such  summons,  shall  have  finally  settled 

with  his  ward,  or  was  prevented  by  sickness  or  other  un- 
avoidable cause  from  exhibiting  his  account,  when  he  shall  not 
pay  costs. 

21.  Every   guardian    shall   take    into    possession,   for   the  f'uavdians  to 
use  of  his  ward,  all  his   estate,  and  may  bring  all  necessary  wards'e^tates.- 
actions  therefor.  E-  s.  c.  54,  s.  9. 

22.  Every  guardian  shall  obtain  an  order  of  the  court  to  Tose_uby  or- 
sell  and  dispose  of  all  such  goods  and  chattels  of  his  ward  as  his  perishable 
may  be  liable  to  perish,  consume,  or  be  the  worse  for  keeping,  estate.— R.  S. 
(except  in  the  instances  hereafter  mentioned,)  for  the  most  that   ■     >  •     • 
can  be  got  for  the  same,  by  public  sale  and  in  reasonable  lots, 

having  first  advertised  the  same  twenty  days,  at  the  court 
house  and  three  other  public  places  in  the  county;  and  shall, 
for  enhancing  the  price,  give  six  months'  credit  upon  good 
security.  And  such  guardian  shall  diligently  endeavor  to  col- 
lect the  money,  upon  pain  of  being  answerable  therefor;  and 
if  the  same  cannot  be  collected  before  the  ward  shall  have  a 
right  to  demand  it,  or  such  guardian  shall  be  removed,  he  may 
assign  the  security  to  the  ward  in  discharge,  for  so  much  due 
from  him. 

23.  Where  the  profits  of  any  ward's  estate  shall  be  more  To  lend  their 
than  sufficient  to  maintain  and  educate  him,  the  guardian  shall  ™u",7for'tater- 
lend  the  surplus  and  all  other  sums  of  money  in  his  hands,  be-  estaunually. 
longing  to  such  ward,  upon  bond  with  sufficient  security  to  be 

repaid,  with  interest  annually ;  and  all  the  bonds,  notes,  and 
other  obligations  which  he  shall  take  as  guardian,  shall  bear '^°"'^^ '°]'*:'"^ 
compound  interest,  for  which  he  shall  account ;  and  when  the  terest— may 
debtor  or  his  sureties  are  likely  to  become  insolvent,  the  guar-  ^^^  assigned  to 
dian  shall  use  all  lawful  means  to  enforce  the  payment  thereof,  ment.— K.  S. 
on   pain   of  being  liable  for  the  same ;  and  he  may  pay  the  "^^ ""''  ^'  ^^' 
same  to  the  ward  on  settlement  with  him. 

24.  Where    any  ward    shall    have    lands,  and  a  sufficient  Slaves  and 
number  of  slaves  to  cultivate    and   improve    the    same,    the  fo  be  kept  on 
slaves,  (unless  otherwise  ordered  by  the  court,)  shall  be  em-  "■"''.'.'^^ '-'/^'["ij 
ployed  on  the  lands  and  farm  of  such  ward ;  and  all  necessary  becomes  too 
horses,  cattle,  sheep,  and  hogs  shall  be  kept  upon  such  lands  ''"'|T'7ii  ^" 
and  farm  until  the  ward  shall  come  of  age.     Provided,  never-  '^'    '  °' 
thelcss,  that  if  the  stock  grow  too  numerous,  or  it  shall  be  to 

the  advantage  of  the  ward,  his  guardian,  by  order  of  the  court, 


322  GUARDIAN    AND    WARD.  [ChAP.  54. 

shall  sell  such  part  of  the  stock  as  the  court  shall  think  fit ;  and 

all  plate  shall  be  preserved  and  delivered  to  the  ward  at  age,  in 

kind,  according  to  weight  and  quantity. 

Land  and  25.    Every  guardian,  where  it  is  not  deemed  to  be  the  inter- 

andhowtobe   6st  of  the  Ward  to  employ  his  slaves  upon  his  lands  and  farm, 

rented  and       shall  hire  out  the   slaves  and  rent  out  the  lands.     Provided 

ahvai/s,  that  no  guardian  shall  let  any  land  belonging  to  his 

ward,    for    a  longer    term    than    the  ward  be  of    age,    or  in 

other  manner  than  by  lease  in  writing;  and  that  special  care  be 

had  that  the   tenant   shall   improve  the  farm,  and  keep  the 

Houses, fences,  houses,  orchards,  and  fences  thereon,  or  that  shall   be  put  on 

S*reDair^^^'  the  same,  in  good  and  sufficient  repair,  and  leave  the  same  so 

S.  c.  54,  s.  15.    at  the  expiration  of  the  lease  ;  and  that  provision  be  made  in 

such  lease  for  preventing  all  kind  of  waste,  and  the  using  of 

any  timber  other  than  for  the  repairing  and   keeping  up  the 

farm. 

Sales,  &c., how      26.  All  sales,   hirings,  or  rentings,  by  guardians,  shall  be 

64,  s.  16.  made  and  conducted  in  the  same  manner  and  under  the  same 

rules  and  regulations,  and  the  same  penalties  for  disobedience, 

as  prescribed  for  sales  made  by  administrators. 

Guardian  lia-        27.  If  any  guardian  shall  suffer  his  ward's  lands  to  lapse  or 

ble  for  suffer-  . 

ing  ward's  land  become  forfeited,  or  be  sold  for  the  non-payment  of  taxes  or 
to  lapse  or  be   other  ducs,  he  shall  be  liable  to  answer  the  full  value  thereof 
taxes,  &c.        to  his  ward.     And  if  any  ward  shall  not  have  slaves  to  culti- 
vate his  lands,  or  it  may  not  be  deemed  best  that  they  should 
do  so,  and  the  guardian  cannot  rent  the  same  for  enough  to 
pay  the  taxes  and  other  dues  thereof,  and  there  shall  not  be 
money  or  perishable    estate   sufficient  for  that  purpose,  the 
When  may  sell  guardian,  with  the  consent  of  the  court,  may  annually  dispose 
timber,  &c.—    of,  or  Use  SO  much  of  the  light  wood,  box,  or  rent  so  many 

K.  S.  c.  54  s.         .  ^  % 

17.  '  '     '  '    pine  trees,  or  sell  so  much  of  the  timber  on  the  same,  as  shall 

raise  enough  to  pay  the  taxes  and  other  dues  thereon,  and  no 

more. 

Allowed  dis-         28.  Every  guardian  may  charge  in  his  account  all  reasona- 

and  expenses,    ble  disbursements  and  expenses  ;  and  if  it  shall  appear  to  the 

and  cominis-     court  that  he  hath  really  and  bona  fide  disbursed  more  in  one 

54, S.22.        'year  than  the  profits  of  the  ward's  estate,  for  his  education 

and  maintenance,  the  guardian  shall  be  allowed  and  paid  for 

the  same  out  of  the  profits  of  the  estate  in  any  other  year. 

Provided,  that  such  disbursements  be,  in  the  opinion  of  the 

court,  suitable  to  the  degree  and  circumstances  of  the  estate 

of  the  ward.     The  court  shall  likewise  allow  commissions  to 

the  guardian  for  his  time  and  trouble  in  the  management  of 

the  ward's  estate,  in  the  same  manner  and  under  the  same 

rules  and  restrictions,  as  allowances  are  made  to  executors  and 

administrators. 

Wards  residing      29.  Where  any  ward,  whether  infant  or  person  of  nonsane 

abroad  and  ...       •'.  '  r^,    ,        ■      ,,  ,  i-ji     i  j. 

havini;  prop-  memory,  residing  in  another  fc>tate  shall  be  entitled  to  any  per- 
erty  in  the  sonal  estate  in  this  State;  or  to  :uiy  money  arising  from  the 
reinovo  it  "  sale  of  real  estate  sold  for  partition  or  otherwise;  or  to  any 
through  guar-  personal  property  substituted  for  realty  by  decree  of  court, 


Chap.  54.]  guaedian  and  ward.  323 

whether  the  same  be  in  the  hands  of  any  executor,  adminis-  d'rw.— R.  s.  c. 
trator,  or  other  person  holding  for'the  ward  ;  or  in  the  hands  of  jiJ^^'  T-is  s 
any  guardian,  residing  in  this   State,  in  whatsoever  mode  ap-  i,  li.' 
pointed  ;  or  if  the  same  (not  being  adversely  held  and  claimed) 
shall  not  be  in  the  lawful  possession  or  control  of  any  person, 
the  guardian  of  such  ward  duly  appointed  at  the  place  where 
such  ward  may  reside,  may  remove  such  estate  to  the  residence 
of  the  ward  in  the  following  manner,  and  in  no  other. 

30.  He  shall  apply  by  bill  or  petition  to  the  court  of  equity  By  petition  in 
of  the  county  in  which  the  property  or  some  portion  thereof  "'glj^^'j^^'^^lf- 
is  situated,  or  in  which  the  defendants  or  some  of  them  may  is42,'c.'38,"s.2. 
be  resident,  and  shall  show  to  the  court  a  copy  of  his  appoint- 
ment and  bond  duly  authenticated,  and  shall  prove  to  the  court 

that  the  bond  is  sulhcient,  as  well  in  the  ability  of  the  sureties 
as  in  the  sum  mentioned  therein,  to  secure  all  the  estate  of 
the  ward  wherever  situated.  Whereupon  the  court,  all  proper 
parties  being  before  it,  shall  direct  proper  accounts  to  be  taken 
and  make  every  necessary  decree,  to  the  end  that  the  guardian 
may  obtain  possession  of  all  the  estate  of  his  ward. 

31.  Nothing  contained  in  this  chapter  shall  be  construed  to  Po-n-cr  of  courts 
restrain  or  abridge  the  power  of  the  court  of  equity  in  any  orphausf&c?,' 
matter  or  thing  relating  to  orphans,  or  wards,  or  their  estates;  not abridgea.— 
but  that  court  may  hold,  use,  exercise,  and  enjoy  the  same  ju-  25.  "'     '^' 
risdiction,  power,  and  authority  therein,  to  all  intents  and  pur- 
poses, as  heretofore. 

32.  On  application  of  the  guardian  of  an  infant  by  bill  or  Estates  of  in- 
petition  to  a  court  of  equity,  showing  that  the  interest  of  the  [fromoTe'their 
infant  would  be  materially  and  essentially  promoted  by  the  nitercst,  when, 
sale  of  any  part  of  his  estate,  real  or  personal,  the  court  may  f4''^2ij.^'  °' 
cause  tlie  truth  of  the  matter  to  be  ascertained,  and  thereupon 

decree  that  a  sale  be  made  by  such  person,  in  such  way  and 
on  such  terms,  as  the  court  shall  adjudge. 

33.  No  sale  made  under  such  decree  shall  be  valid  until  the  Manner  of 
same  be  confirmed  by  the  court:  no  conveyance  of  title  shall  ™||n"ow*'pi^J- 
be  made,  until  the  court  shall  order  it  and  designate  the  per-  c^ee.is  uppiied 
son  to  make  the  title ;  and  the  proceeds  of  the  sale  shall  be  R."s!'i'!'5r^sr 
exclusively  applied  and  secured  to  suoh  purposes  and  on  such  2'- 
trusts,  as  the  court  shall  specify  and  direct.     Provided  (dicaj/s, 

that  whenever  in  consequence  of  such  sale  the  personal  or  real 
estate  of  the  infant  is  saved  from  demands,  to  which  in  the 
first  instance  it  might  be  liable,  the  court  shall  declare  and  set 
apart  a  portion  of  the  personal  or  real  estate  thus  saved,  of 
value  equal  to  the  real  and  personal  estate  sold,  as  property 
exchanged  for  that  sold  ;  and  in  all  such  cases  of  sale,  whereby 
real  is  substituted  by  personal,  or  personal  by  real  property, 
the  beneficial  interest  in  the  property  acquired,  shall  be  en- 
joyed, alienated,  devised,  and  bequeathed,  and  shall  descend 
and  be  distributed,  as  by  law  the  property  sold  might  and 
would  have  been  had  it  not  been  sold,  until  it  shall  be  recon- 
verted from  the  character  thus  impressed  upon  it  by  some  act 
of  the  owner,  and  restored  to  its  character  proper. 


324  GUARDIAN   AKD   WAED.  [ChaP.    54. 

When  ward  is       34.    When  any  guardian  shall  have  notice  of  a  debt  or  de- 
gutuSto^s^ii  mand  against  the   estate  of  his  ward,  he  may  apply  to  the 
Sis  property,     court  wherein  the  guardianship  was  gi'anted  for  an  order  to 
sell  so  much  of  the  personal  or  real  estate  of  his  ward  as  may 
be  suificient  to  discharge  such  debt  or  demand  ;  and  the  order 
of  the  court  shall  particularly  specify  what  property  may  be 
Proceeds  to  be  sold,  and  the  terms  of  sale  ;  and  the  proceeds  shall  be  consid- 
set'ol'de*  as'd  ^^^'^  ^^  assets  in  the  hands  of  the  guardian  for  the  benefit  of 
debtors.— i:.     the  creditors,  in  like  manner  as  assets  in  the  hands  of  an  ad- 
b.  c.  63,  s.  11.    niinistrator  or  executor;   and  the   same  proceedings  may  be 
had    against   the    guardian   with    respect   to    such  assets,    as 
might  be  taken  against  an  executor  or  administrator  in  sim- 
ilar cases. 
Sureties  of  35.    Any  surety   of  a  guardian,  who  shall  be  in  danger  of 

la^e'i^ofloss    Sustaining  loss  by  his  suretyship,  may  file  his  petition  in  the 
how" relieved.'   court  where  the  guardianship  was  granted,  setting  forth  the 
~^\  ^'  '^'  ^*'  circumstances  of  his  case  and  praying  relief;  and  thereupon 
the  defendant  shall  be  required  to  answer  the  premises  accord- 
ing to  the  course  of  the  com-t.     And  if  upon  the  hearing,  the 
court  shall  deem  the  petitioner  entitled  to  relief,  the  same  may 
be  granted  in  such  manner  and  to  such  extent,  by  compelling 
the  defendant  to   give   security  to  indemnify   the    petitioner 
against  such  apprehended  loss,  by  sequestration  of  the  prop- 
erty or  by  the  removal  of  the  defendant  from  the  guardianship, 
.or  in  any  manner  as  to  the  court  shall  appear  to  be  just;  and 
the  court  may  from  time  to  time  pending  the  petition,  make 
such  interlocutory  order  and  decree  as  may  tend  to  the  better 
securing  of  the  petitioner. 
Female  guardi-      36.  Female  guardians  shall  be  allowed  to  make  affidavit  to 
to  tUei'r  re^turils  their  accounts  before  any  justice  of  the  peace,  who  shall  cer- 
before  justices,  tify  the  same  to  the  court. 


Sect.  1.  2  D.  &  B.  Eq.  325.    Not  for  grandchlMren,  Bus.  Eq.  46. 

Sect.  2.  Where  guardian  has  left  tiie  Slate,  11  Ire.  37.  Who  apjmiited,  1  Hay.  303, 
1  Jlur.  231,  2  lb.  122.     One  acting  (w  guardian,  2  Car.  L.  R.  411. 

Sect.  5.  Vutij  of  guardian:  obligatim  of  bund,  4  D.  &  B.  194,  1  Ire.  Eq.  282.  Negli- 
gence, 4  Ire.  Eq.  64,  1  Jones,  Eq.  167,  lb.  331. 

Sect.  10.  Huccessire  bonds  cumulative,  3  Ire.  Eq.  C02,  lb.  689,  6  Ire.  Eq.  115.  Liability 
of  clerk,  1  Jones,  364. 

Sect.  23.  3  Ire.  Eq.  64.  IIow  interest  compounded,  11  Ire.  227.  When  compound  inter- 
est ceases,  3  Dev.  430.  May  take  real  securitu,  3  Ire.  Eq.  549.  Sale  of  bonds  mj  guardian, 
1  Ire.  Eq.  342,  lb.  337,  lb.  340,  3  lb.  99,  4  Ire.  Eq.  281;  bona  Jide  sale,  5  Ire.  Eq.  122. 

Sect.  25.  Jlired  out  to  what  time,  13  Ire.  475. 

Sect.  28.  Allowmntt  of  commissions,  1  Ire.  Eq.  136.  When  commissions  u-ill  exceed 
income,  2  Ire.  Eq.  354.  Accounts  of  guardian :  father,  guardian,  2  Ire.  Eq.  478;  ward  to 
take  bomis,  6  Ire.  Eq.  238;  board  of  xcards  before  apjiointment.  Bus.  llii;  interest,  1  Dev. 
Eq.  882;  executor,  guardian,  1  D.  &  B.  Eq.  564;  seltlancnl,  2  D.  &  B.  Eq.  155,  8  Ire.  178, 
Bus.  480,  5  Ire.  Eq'.  136,  1  Jone?,  ICq.  106. 

Sect.  32.  5  Ire.  Eq.  136,  Bus.  Eq.  86. 

Sect.  34.    What  a  valid  sale,  11  Ire.  431,  1  lb.  259.     Pnorily  of  debts,  3  Ire.  501. 

Sect.  36.  2  Ire.  Eq.  697, 1  D.  &  B.  475. 


Chap.  55.]  habeas  corpus.  325 


CHAPTER    55. 


HABEAS   CORPUS. 


1.  Vfriis  of  habeas  corjms ;  how  obtaineJ 

in  vacation. 

2.  Duty  of  officer    or  otlier  person  to 

whom  tiie  writ  is  directed. 

3.  Dutj'  of  judge  on  return  of  writ. 


Section 

6.  Penalty  on  judge  for  refusing  the  writ. 

7.  On  officer  for  not  obeying  it. 

8.  For  again  imprisoning  a  person  re- 

leased on  the  writ. 

9.  Persons  committed  for  capital  offences 


i.  Writs   to  be  .applied  for  within  two  entitled  to  trial  or  discharge,  when. 

terms  after  imprisonment.  10.  Writ  granted  in  civil  cases. 

5.  Eeturned  in  open  court,  when  court  is  11.  Subpcenas  to  issue  for  parties.    Costs, 

in  session.  I  how  and  by  whom,  paid. 

1.  If  any  person  shall  stand  committed,  or  be  detained  for  Writs  of  habeas 
any  crime,  in  the  vacation  time,  (other  than  persons  convicted,  corpus,  how 

'    .         ,       ,         ,  ,\  '  I  .     1     1     ,  -   obtamed  m  va- 

or  in  execution  by  legal  process,)  he,  or  any  one  on  his  behalf,  cation.— R.  S. 
may  complain  to  any  judge  of  the  supreme  or  superior  court;  ?;.®°',*- ■'' ^^ 
and  the  judge,  on  view  of  the  copy  of  the  warrant  of  com-  i,  2,"  3|  4J  5',  6, 
initment,  or  otherwise  on  oath  that  it  was  denied,  on  request  ">  ^' ^o- 
in  writing  by  such  person,  or  any  in  his  behalf,  attested  and 
subscribed  by  a  witness,  who  was  present  at  the  delivery  of 
the  same,  shall  grant  a  habeas  corpus,  directed  to  the  officer  or 
other  persons  in  whose  custody  the  party  shall  be,  returnable 
immediately  before  the  said  judge. 

2.  Whenever  any  writ  of  habeas  corpus  issued  as  aforesaid.  Duty  of  officer 
shall  be  served  on  any  officer  or  other  person,  havins:  in  his  f  "'^er  person 

•  I  1     1      1  p  1  ■     .  1  '"  whom  the 

custody  the  person  in  whose  behalf  such  writ  is  issued,  or  be  writ  is  directed. 

left  at  the   jail  or  prison  with  any  of  the    under  officers,  or~q'^"°'^^' 

deputies  of  the  said  officer,  such  officer,  or  his  under  officers 

or  deputies,  or  the  person  having  the  custody  as    aforesaid, 

without  delay,  shall  bring  or  cause  to  be  brought  the  body  of 

the   party   so   committed   or  restrained,  before   the  judge  by 

whom  the  said  writ  was  issued,  or  such  other  person  before 

whom  the  writ  is  made  returnable,  according  to  the  command 

thereof;  and  in  case  of  the  absence  of  such,  before  any  judge 

of  either  of  the  said  courts,  together  with  the  true  cause  of 

his  commitment  and  detainer  or  imprisonment. 

3.  Upon  such  return  being  made,  within  two  days  after  the  Duty  of  judge, 
party  being  brought  before  him  the  judge  shall  discharge  the  ""j'',''^]^"  g*^^ 
said  prisoner  from  his  imprisonment,  as  the  case  may  require,  65,  s.  3.  ' 
either  absolutely  witliout  bail,  or  taking  his  recognizance  with 

one  or  more  sureties  in  any  sum,  according  to  his  discretion, 
(having  regard  to  the  circumstances  of  the  prisoner  and  nature 
of  the  offence,)  for  his  appearance  at  the  ne.xt  term  of  the 
court  wherein  the  offence  is  properly  cognizable,  and  then 
shall  certify  said  writ  with  the  return  thereof,  and  the  recogni- 
zance into  such  court,  unless  it  be  made  to  appear  to  the  judge 
that  the  party  is  detained  upon  a  legal  process,  order,  or  war- 
28 


326  HABEAS  CORPUS.  [Chap.  55. 

rant  out  of  some  court  that  has  jurisdiction  of  criminal  mat- 
ters, or  by  some  warrant,  signed  with  the  hand  of  any  judge 
of  the  supreme  or  superior  court,  or  some  justice  of  the  peace, 
for  such  matters  or  ofiences  for  which  by  law  the  prisoner  is 
not  bailable, 
"^y.'",  •,"  ■'^"P.-       4.    If  any  person  shall  have  wilfully  neglected  for  the  space 
two  terms  after  01  two  whoie  terms,  after  his  mipnsonment,  of  the  superior 
— ]">' sTTo"*'  '^°"'"*'  '^^  ^^^'^  county  in  which  he  may  be  imprisoned,  to  pray  a 
5.4."    '"'  "'     habeas  corpus  for  his  enlargement,  he  shall  not  have  a  habeas 

corpus  in  vacation  time  in  pursuance  of  this  chapter. 
Eetuniedin  5.    While  the  superior  court  of  law  for  the  county  where 

Xe'n  court  is    ^^^^  piisoucr  is  detained  shall  be  in  session,  no  person  shall  be 
in  session.— R.  removed   from   the    common    jail    upon    any    habeas  corpus 
S.  c.  S5,  s.  5.     gi-aiited  in  pursuance  of  this  chapter,  but  upon  such  habeas 
corpus  shall  be  brought  before  the  judge  in  open  court,  who 
shall  thereupon  do  what  to  justice  "shall  appertain ;  but  after 
the  term  of  the  said  court  is  ended,  any  person  detained  may 
have    his    habeas  corpus    according  to  the  directions  of  this 
chapter. 
\fd"e'L°refu=       6.    If  any  judge  of  the  supreme  or  superior  court,  in  the  va- 
iug^he"writ.—  Cation  time,  upon  view  of  the  copy  of  a  warrant  of  commit- 
I!.  S.  c.55,s.6.  ment  or  detainer,  or  on  oath  made  that  such  copy  was  denied, 
shall  deny  any  writ  of  habeas  corpus  by  this  chapter  required 
to  be  granted,  being  moved  for  as  aforesaid,  he  shall  forfeit  to 
the  party  grieved  two  thousand  five  hundred  dollars. 
On  officer  for         7.    If  any  officer  or  other  person  to  whom  a  writ  of  habeas 
obfy  it-l!!°S.  corpus  shall  be  directed,  shall  neglect  or  refuse  to  make  the  re- 
c.  55,5.7.         turns  as  aforesaid,  or  to  bring  the  body  of  the  prisoner  accord- 
ing to  the  command  of  the  writ,  without  delay ;  or  shall  not, 
within  six  hours  after  demanded,  deliver  a  true  copy  of  the 
commitment  or  cause  of  detainer,  he  shall,  upon  conviction  by 
indictment,  forfeit  for  the  first  oflence  five  hundred  dollars,  and 
for  the  second  oflence  one  thousand  dollars,  and  be  rendered 
incapable  to  hold  his  office. 
Fora^ainim-       8.    No  person  who  shall  be  set  at  large  upon  any  habeas 
personrfieased  corpus,  siiall  be  again  imprisoned  for  the  same  otFence  by  any 
on  the  writ.— ^  person  whatsoever,  other  than  by  the  legal  order  and  process 
.0.  0,  s. ..  p£  ^[^g  court  wherein  he  shall  be  bound  by  recognizance  to  ap- 
pear, or  other  court  having  jurisdiction  of  the  cause,  under  the 
penalty  of  two  tiiousand  five  hundred  dollars,  to  be  recovered 
by  the  party  aggrieved. 
Persons  com-        9.    If  any  person  who  shall    be    committed  for  treason  or 
Uaroffencer'''  felony,  jilainly  and  specially  expressed  in  the  warrant  of  corn- 
entitled  to  trial  mitment,  upon    his    prayer    or    petition    in    open  court  to  be 
wli'ei'.-R.®l!     browglit  to  his  trial,  shall  not  be  indicted  some  time  in  the 
c.  65,  s.  9.        next  term  (after  such  commitment)  of  the  court  having  juris- 
diction of  his  offence,  the  judge  of  the  court  shall,  upon  notice 
in    open    court   tiie    last  day  of  the   term,  set  at  liberty  the 
prisoner  upon  bail,  unless  it  appear  upon  oath  that  the  wit- 
nesses for  the  Slate  could   not  be  produced  the  same  term; 
and  if  such  prisoner,  upon  liis  prayer  or  petition  as  aforesaid, 


Chap.  56.]  husband  and  wife.  327 

sliall  not  be  indicted  and  tried  tlie  second  term,  he  shall  be  dis- 
cliarged  from  his  imprisonment. 

10.  When  any  person  shall  be  imprisoned  or  otherwise  re- To  be  Kranted 
strained  of  his  liberty,  for  any  other  cause  than  the  commis- j"  g^'^gg"''-" 
sion  of  a  criminal  offence,  (unless  he  shall  have  been  com- lO;  b6  Geo.  .3, 
mittcd  in  execution  upon  some  legal  civil  process,  or  upon  some  "'  ^'"'' 
mesne  process  in  a  civil  action,  on  which  he  was  liable  to  be 

arrested  and  imprisoned,  and  on  which  excessive  and  unrea- 
sonable bail  shall  not  have  been  required,)  such  person  shall 
be  entitled,  on  application  by  himself  or  any  person  in  his  be- 
half, upon  its  appearing  by  affidavit  that  there  is  a  reasonable 
ground  for  the  complaint,  to  the  same  remedy  by  writ  of 
habeas  corpus,  and  subject  to  the  same  rules,  regulations,  and 
restrictions  in  every  respect,  as  are  prescribed  in  this  chapter; 
and  the  judge  to  whom  application  is  made,  and  the  officer  or 
other  person  to  whom  such  writ  may  be  directed,  shall  be  sub- 
jected to  the  same  penalties  and  punishments  for  refusal  or 
neglect  to  discharge  their  several  duties  as  are  hereinbefore 
prescribed. 

11.  Any  party  to  a  writ  of  habeas  corpus  may  procure  the  Subpa^nns  to 
attendance  of  witnesses  at  the  hearins:  by  subpoena,  issued  by  1?^""  ''"''  R^''" 

<j      J  L  '  J    ti6s:  costf'  liow 

the  clerk  of  any  court  of  record  under  the  same  rules,  regula-  and  by  wiiom 
tions,  and  penalties  as  are  prescribed  bylaw  in  case  of  wit- Pg"''~^^°^i  °- 
nesses  attending  the  courts ;  and  the  judge,  who  shall  deter- 
mine such  writ,  may  adjudge  and  decide  how  and  by  whom 
the  costs  arising  thereon  shall  be  paid,  and  direct  by  what 
officer  the  costs  shall  be  taxed;  and  such  officer  may  issue  exe- 
cution therefor,  returnable  to  the  next  term  of  his  court. 


CHAPTER    56. 


HUSBAND  AND  WIFE. 


Section 
1.  Real  estate  of  wife  not  to  be  sold  or 
leased   without  lier  consent.    Hus- 
band's interest  exempt  from  execu- 
tion. 


Section 
2.  Feme  may  insure  lier  husband's  life, 
and  will  the  interest.    If  she   sur- 
vives, to  be  assets  to  pay  his  debts, 
in  certain  cases. 


1.    No   real    estate   belonging  at  the   time  of  marriage  to  Real  estate  of 
females,   married  since  the  third  Monday  of  November,  A.  D.  ^^jj^  ""*  i*,'?,^^^^ 
one   thousand   eight   hundred   and    forty-eight,    nor   any   real  without  her 
estate  by  them  subsequently  acquired,   nor   any    real    estate  <=°"^**"'- 
acquired  on  and  since  the  first  day  of  iVIarch,- A.  D.  one  thou- 
sand eight  hundred  and  forty  nine  by  feme  coverts,  who  were; 
such  on  the  said  third   Monday  of  November,  A.  D.  one  thou- 
sand eight  hundred  and  forty-eight,  shall  be  subject  to  be  sold 
or  leased  by  the  husband  for  the  term  of  his  own  life,  or  any 


328 


Husband's  in- 
terest exempt 
from  execu- 
tion.— 
1848,  c.  41. 


Feme  may  in- 
sure liusband's 
life,  and  will 
the  interest.   If 
she  sur\'ives,  to 
be  assets  to  pay 
his  debts,  in 
certain  cases. — 
185C,  c.  90. 


IDIOTS   AND   LUNATICS.  [ChAP.    57. 

less  term  of  years,  except  by  and  with  the  consent  of  his  wife, 
first  had  and  obtained,  to  be  ascertained  and  etlijctuated  by 
deed  and  privy  examination,  according  to  the  rules  required 
by  law  for  the  sale  of  lands  belonging  to  feme  coverts.  And 
no  interest  of  the  husband  whatever  in  such  real  estate,  shall  be 
subject  to  sale  to  satisfy  any  execution  obtained  against  him ; 
and  every  such  sale  is  hereby  declared  null  and  void,  in  law 
and  equity.. 

^.  Any  feme  covert,  in  her  own  name,  or  in  the  name  of  a 
trustee  with  his  assent,  may  cause  to  be  insured  for  any  defi- 
nite time  the  life  of  her  husband,  for  her  sole  and  separate 
use ;  and  she  may  dispose  of  the  interest  in  the  same  by  will, 
notwithstanding  her  coverture.  Provided,  hoioever,  that  when 
the  annual  premium  for  insurance  shall  exceed  three  hundred 
dollars,  and  shall  not  be  paid  altogether  out  of  her  own  sepa- 
rate estate,  or  by  some  friend  for  her,  the  sum  due  on  the 
insurance  on  the  death  of  her  husband,  she  surviving,  shall 
in  case  of  the  insolvency  of  the  estate,  be  apjjlied  to  the  dis- 
charge of  his  obligations,  contracts,  and  liabilities.  \ 


CHAPTER    57. 


IDIOTS  AND  LUNATICS. 


Section 

1.  Idiocy  and  lunacy  ascertained  by  in- 

quisition. 

2.  Guardians  appointed  by  county  court. 

3.  Person  and  estate  may  be  committed 

to  different  persons. 

4.  Sale  of  tiieir  estate  oi'dered  by  county 

court,  when. 

5.  How  and  for  what  purpose  courts  of 

equity  may  order  sale  of  their  es- 
tates. Heirs  and  next  of  kin  to 
be  p.irties.  Proceeds,  how  appHed 
and  secured ;  how  descend,  &c. 

6.  Estates   without    guardian,  managed 

by  court  of  equity,  &c. 
1.  Proceedings,    when    imprisoned   for 

crime. 
■8.  May  be  tried  on  becoming  sane. 
9.  Surplus  income  of  insane  person  may 


Section 

be  advanced,  in  certain   cases,  to 
next  of  kin. 

10.  Purposes   for   which   such    advance- 

ments  may  bo  made.     To    whom 
paid. 

11.  All  persons  interested  made  parties. 

12.  Rule  to  be  observed  by  the  court. 

13.  Court  may  select  the  persons  to  be 

advanced. 

14.  Advancements  secured  against  waste. 

15.  Appeal  and  removal  to  supreme  court 

allowed. 

16.  Of  what  kind  of  insane  persons,  ad- 

vancements to  be  made  of  their  es- 
tates. 

17.  Decrees  for  advancements  suspended 

on  restoration  to  sanity. 


Idiocy  and  lu-  1.  The  idiocy  or  lunacy  of  every  person,  for  whom  a  guar- 
tainedTyhi-  *^^^'^  "^^^^  ^^  apjiointed  by  the  county  court,  shall  be  ascer- 
quisition".  —  R.  talned  by  the  inquisition  of  a  jury,  to  be  summoned  by  the 
S.  c.  57,  s.  1.  sheriff  by  virtue  of  a  writ  issued  by  the  court  for  that  purpose, 
on  a  petition  filed  at  the  instance  of  the  court  by  the  county 
solicitor,  or  at  the  instance  of  some  person  in  behalf  of  such 


Chap.  57.]  idiots  and  lunatics.  329 

idiot  or  lunatic,  leave  of  the  court  being  first  obtained  there- 
for. 

2.  The   county  court  shall  appoint,  to  be  removed  at  its  •"'ninrdinn  np- 
jilcasure,  a  guardian   for  every  lunatic  or  idiot,  that  may  be  ^"."com'?'— r. 
Ion  Lid  to  be  such  in  manner  aforesaid,  and  may  be  possessed  S.  c.  57,  s.  i. 
of  any  estate,  who  shall  enter  into  bond,  with  good  security, 

in  the  same  manner  as  guardians  of  orphans,  which  shall  be 
conditioned  as  well  for  the  taking  care  of  such  nonsane  per- 
son, as  for  the  prudent  management  of,  and  faithfully  account- 
ing for,  his  estate  ;  and  such  guardian  shall  make  like  returns, 
receive  like  compensation,  have  like  powers,  and  be  subject  to 
like  remedies  on  his  bond,  as  guardians  of  orphans. 

3.  The  guardianship  of  such  nonsane  person  and  his  estate  Person  nm\  es- 
may  be  committed  to  different  persons,  whenever  the  court  '^'®  ™V  ^l 

u    II    J  -i       J    •      1,1  •  r  1  J  u         commuted  to 

shall  deem  it  advisable,   as  in   cases  ot  orphans;  and,  when  different per- 
thus  separated,  provision  may   be  made  for  his  support  in  like  ^™^' 
manner. 

4.  Whenever  it  shall  appear  to  any  county  court,  (seven  Sale  of  their 
justices  being  present,)  byreportof  the  wardens  of  the  county,  or  by^JounTv^"'^'' 
the  guardian  of  any  idiot  or  lunatic,  that  his  personal  estate  has  court,  iviien.— 
been  exhausted,  or  is  insufficient  for  his  support,  and  that  he  ^'  ^•<=-^^''-2- 
is  likely  to  become  chargeable  on  the  parish,  the  court  may 

make  an  order  for  the  sale  or  renting  of  his  personal  or  real 
estate,  or  any  part  thereof,  in  such  manner  and  upon  such 
terms  as  they  may  deem  advisable.  Such  order  shall  specify 
particularly  the  property  thus  to  be  disposed  of,  with  the  terms 
of  renting  or  sale,  and  shall  be  entered  at  length  on  the  records 
of  the  court ;  and  all  sales  and  rentings  made  under  the  pro- 
visions of  this  section,  shall  be  valid  to  convey  the  interest  and. 
estate  directed  to  be  sold,  and  the  title  thereof  shall  be  con- 
veyed by  such  person  as  the  court  may  appoint  on  confirm- 
ing the  sale ;  or  the  court  may  direct  the  guardian  to  file  his 
petition  in  a  court  of  equity  for  such  purpose. 

5.  Whenever  it  shall  appear  to  a  court  of  equity,  upon  the  How  and  for 
petition  of  the  guardian  of  any  idiot  or  lunatic,  that  a  sale  of  pourts''of''equi- 
any  part  of  his  real  or  personal  estate  is  necessary  for  his  ty  may  order  a 
maintenance,   or  for  the  discharge   of  debts  unavoidably  in- t^jeg"*^ *""' ®^" 
curred  for  his  maintenance  ;  or,  whenever  the  court  shall  be 
satisfied  that  the  interest  of  the  idiot  or  lunatic  would  be  ma- 
terially and  essentially  promoted   by  the   sale  of  any  part  of 

such  estate  ;  or  whenever  any  part  of  his  real  estate  is  required 
for  public  purposes,  the  court  may  decree  a  sale  thereof  to  be 
made  by  such  person,  in  such  way  and  on  such  terms,  as  it 
shall  adjudge.     Provided,  however,  that  the  court,  if  it  be  Heirs  and  next 
deemed  proper,  may  direct  to  be  made  parties  to  such  petition  °f  i^'."  '"  ^^ 
the  next  of  kin  or  presumptive  heirs  of  such  nonsane  person. 
And  if  on  the  hearing,   the   court  shall  decree  such  sale,  the  Proceeds,  how 
same  shall  be  made,  and  the  proceeds  applied  and  secured,  "{J|!g|ff,"",^  j^ 
shall  descend  and  be  distributed,  in  like  manner  as  is  provided  scend.&o.— R. 
for  the  sale  of  infant's  estates  decreed  in  like  cases  to  be  sold  ^'  ''■ "''  *'  ^'*" 
28* 


330  IDIOTS   AND   LUNATICS.  [ChAP.    57. 

oil  application   of  tlieir  guardians,  as  directed  in  the  chapter, 
entitled  "  Guardian  and  Ward." 
Estateswithoat      (j_    Whenever  any  person  is  declared  to  be  of  nonsane  mind, 
»sed  by  court   and  for  whom   no  suitable   person  will  act  as  guardian,  the 
°f «3""-^'-—     court  of  equity  shall  secure  the  estate  of  such  person  accord- 
'  "     '  '  '  ing  to   the  provisions  of  the  law  relating  to  orphans,  whose 
guardians  have  been  removed  by  the  county  court. 
Proceedings  7.    W^henevcr    any    person    shall   be    confined    in    any   jail 

oneTfOT  crime,  charged  with  a  criminal  offence,  and  it  shall  be  suggested  to 
—  1848,  c.  57,  the  court,  wherein  such  indictment  is  pending,  that  he  is  in- 
^'  ■  sane  and  incapable  of  being  brought  to  trial,  the  court  shall 

empanel  a  jury  to  inquire  into  the  truth  of  the  suggestion; 
and  if  the  jury  shall  by  their  verdict  find  the  prisoner  to  be  in- 
sane, the  judge,  if  the  same  be  in  the  superior  court,  shall  order 
the  said  finding  to  be  certified  to  the  county  court  of  the 
county;  and  the  county  court  on  receiving  said  cerlificate,  or 
upon  the  finding  of  the  jury  in  the  county  court,  if  the  charge 
shall  be  pending  there,  may  cause  such  prisoner  to  be  removed 
to  the  asylum  for  the  insane,  or  to  be  otherwise  provided  for, 
according  to  law,  to  the  end  that  proper  means  be  used  for 
his  cure. 
Tried  on  be-  8.    No  such  proceedings  shall  prevent  the  trial  of  such  per- 

cominKsane. —  i  •     u 

1848  c.  57  s.  3.  son  upon  his  becoming  sane. 

Surplus  in-  9.    Whenever  any  nonsane  person,  of  full  age,  and  not  hav- 

peSonsmavbe  iiig  made  a  valid  will,  shall  have  children  or  grandchildren, 
advanced  iu      (such  grandchildren  being  the  issue  of  a  deceased  child,)  and 

certain  cases  to    uiii  jf  ij.  i  ii  i 

next  of  kin.  shall  be  possessed  ol  an  estate,  real  or  personal,  whose  annual 
income  shall  be  more  than  sufiicient  abundantly  and  amply  to 
support  himself,  and  to  support,  maintain,  and  educate  the 
members  of  his  family,  with  all  the  necessaries  and  suitable 
comforts  of  life,  it  may  be  lawful  for  the  court  of  equity  for  the 
county  in  which  such  person  shall  have  his  residence  to  decree, 
from  time  to  time,  and  as  often  as  may  be  judged  expedient, 
that  fit  and  proper  advancements  be  made,  out  of  the  surplus 
of  such  income,  to  any  such  child,  or  grandchild,  not  being  a 
member  of  his  family  and  entitled  to  be  supported,  educated, 
and  maintained  out  of  the  estate  of  such  person. 

Purposes  for         IQ.    Such  advancements  shall  be  decreed  only  for  the  better 

■which  such  ad-  i-         •      I'l-        r  i  r  •     i  i  r       ^i 

vauccments      promotion  m  lile  ol  such  as  are  ot  age,  or  married,  and  lor  the 

may  be  made,  maintenance,  support,  and  education  of  such  as  arc  under  the 

age  of  twenty-one  years  and  unmarried  ;  and  in  all  cases,  the 

sums  decreed  shall  be  paid  to  such  persons,  as  in  the  opinion 

of  the  court,  will  most  effectually  execute  the  purpose  of  the 

To  whom  paid,  advancement.     Provided,  hoivever,  that,  in  case  the  child,  or 

grandchild,  be  a  feme  covert,  the  sum  advanced  shall  be  paid 

or  secured  to  her,  for  her  sole  and  separate  use. 

All  persons  in-      H.    In  every  application  for  such  advancements,  the  guar- 

partles.  diaii   or  committee  of  tlie  nonsane  person,  ami  all  such  other 

persons  shall  be  parties,  as  would  at  that  time  be  entitled  to  a 

distributive  share  of  his  estate,  if  he  were  then  dead. 

Bale  to  be  ob-      12.    The  court,  in  decreeing  such  advancements,  shall  as  far 


Chap.  58.] 


INFAMOUS    PERSONS. 


331 


as  practicable  so  order  the  same,  as  that,  on  the  dcatli  of  the  ^^^.^j'^^^  "'^ 
nonsane  person,  his  estate  shall  be  distributed  among  his  dis- 
tributees in  the  same  equal  manner,  as  if  the  advancements  had 
been  made  by  the  person  himself;  and  on  his  death,  every 
sum  advanced  to  a  child,  or  grandchild,  shall  be  deemed  an 
advancement,  and  shall  bear  interest  from  the  time  it  may  be 
received. 

13.  When  the  surplus  aforesaid  shall  not  be  sufficient  to  feottheTersots 
make  distribution  among  all  the  parties,  the  court  may  select  to  be  advanced. 
and  decree  advancements  to  such  of  them  as  may  most  need 

the  same,  and  may  apportion  the  sum  decreed  in  such  amounts 
as  shall  be  deemed  expedient  and  proper. 

14.  It  shall  be  the  duty  of  the  court  to  withhold  advance-  Ailvancements 

.  ,  -11  1     1  1  X     j-T  J.     secured  against 

ments  from  such  persons  as  will  probably  waste  them,  or  so  to  waste, 
secure  the   same  when  they  may  have  families,  that  it  may 
be  applied  to  their  support  and  comfort,  but  any  sum  so  ad- 
vanced shall  be  regarded  as  an  advancement  to  such  persons. 

15.  Any  person  made  a  party  may  appeal  from  any  decree  Appeal  and  re- 

„     ,  J    t^  .         V  ,*',,■'  '  /'-IT  ■       moval  to  su- 

of  the  court ;  or  may,  when  the  pleadings  are  Imished,  require  preme  court 
that  all  further  proceedings  shall  be  had  in  the  supreme  court,  allowed. 

16.  No  such  application  shall  be  made  under  the  provisions  Of  what  kind 

.,,.,,''.  ^  ,  ,  1  i-  1  of  insane  per- 

of  this  chapter,  but  in  cases  oi  such  permanent  and  contmuecl  sn,,;:^  adranoe- 
insanity,  as  that  the  nonsane  person  shall  be  judged   by  the  m™ts  to  be 
court  to  be  incapable,  notwithstanding  any  lucid  intervals,  to  estates. 
make  advancements  with  prudence  and  discretion. 

17.  Upon  such  insane  person  being  restored  to  sanity,  every  ■^^'"''"^n,^^"^'^'^" 
decree  made  for  advancements  shall  cease  to  be  further  exe- suspended  on 
cuted,  and  his  estate  shall  be  discharged  of  the  same.  restoration  to 

'  °  sanity. 


Sect.  1.  Form  of  proceeding,  1  Ire.  B23,  3  Ire.  Eq.  535,  1  Hawks,  11.  Effect  of  as 
evidence,  4  Ire.  Eq.  443. 

Sect.  2.  Sail  limo  brought,  2  Ire.  Eq.  294,  3  Ire.  389.  Accounts  of  guardian :  how  set- 
Ued,  2  D.  &  B.  Eq.  385.     Liable  for  compound  interest,  1  Ire.  Eq.  426. 

Sect.  5.  Jiffect  of  decree  of  side,  2  Ire.  Eq.  294.  Uow proceeds  applied,  4  Ire.  Eq.  231, 
6  lb.  406.    Jurisdiction  territorial,  1  D.  &  B.  Eq.  152. 


CHAPTER    58. 


INFAJNIOUS  PERSONS. 


Section 

1.  Persons  convicted  of  infiimous  crimes, 

how  restored  to  rights  of  citizenship. 

2.  Depositions  not  to  be  read  on  the  ap- 

plication. 


Section 

3.  Petition  filed  in  county  of  conviction. 

No  person  restored  more  than  once. 

4.  Petition  not  to  be  filed  within  four 

years  after  conviction. 


1.    Any  person  who  may  have  been  convicted  fff  an  mfa- r.'i^""\.f™.- 

I  ■  1  •     1   .  c      -i-  1   •  r      /■    -i      1  victcd  ot  uiln- 

mous  crime,  whereby  the. rights  of  citizenship  are  iorleited,  may  mmis crimes, 
be  restored  to  the  same,  under  the  following  rules  and  regula-  how  restored  to 


332 


rights  of  citi- 
zenship.— 
1840,  c.  36. 


Depositions  not 
to  be  read. — 
1840,  c.  36. 


Petition  filed 
in  county  of 
conviction. 
No  person  re- 
stored more 
than  once. — 
1S40,  0.  36. 


Petition  not  to 
be  filed  within 
four  years  after 
conviction. — 
1840,  c.  36. 


INSOLVENT   DEBTORS.  [CoAP.    59. 

tions.  First,  he  shall  file  his  petition  in  the  superior  court  of 
law,  setting  forth  his  conviction  and  the  punishment  inflicted, 
and  shall  state  therein  his  place  or  places  of  residence,  and 
his  occupation  since  his  conviction,  and  shall  also  state  the 
meritorious  causes,  which,  in  his  opinion,  entitle  him  to  be  re- 
stored to  his  forfeited  rights.  Second,  upon  filing  the  petition, 
the  clerk  of  the  court  shall  advertise  the  substance  thereof,  at 
the  court  house  door  of  his  county,  for  the  space  of  three 
months  next  before  the  court  when  the  petitioner  proposes 
that  the  same  shall  be  heard.  T/iird,  at  the  hearing,  the  court, 
on  being  satisfied  of  the  truth  of  the  facts  set  forth  in  the  pe- 
tition, and  on  its  being  proved  by  five  respectable  witnesses 
who  have  been  acquainted  with  the  petitioner's  character  for 
three  years  next  preceding  the  filing  of  his  petition,  that  his 
character  for  truth  and  honesty  during  that  time  has  been 
good,  shall  decree  his  restoration  to  the  "lost  rights  of  citizen- 
ship, and  the  petitioner  shall  accordingly  be  restored  thereto. 

2.  At  the  hearing,  no  deposition  relating  to  the  character  of 
the  petitioner  shall  be  read  ;  and  the  court  shall  examine  all 
proper  testimony  which  may  be  offered  either  by  the  petitioner, 
or  any,  who  may  oppose  the  grant  of  his  prayer. 

3.  The  petition  shall  be  filed  in  the  county  where  the  indict- 
ment was  found,  upon  which  the  conviction  took  place ;  and 
in  case  the  petitioner  may  have  been  convicted  of  an  infamous 
crime  more  than  once,  and  indictments  for  the  same  may  have 
been  found  in  different  counties,  the  petition  shall  be  fik'd  in 
that  county  where  the  last  indictment  was  foundj  and  no  per- 
son shall  be  entitled  to  be  restored  to  the  lost  rights  of  citizen- 
ship more  than  once. 

4.  No  petition  for  the  purposes  aforesaid,  shall  be  filed  with- 
in less  time  than  four  years  after  conviction. 


CHAPTER    59, 


IXSOLAT.XT  DEBTORS. 


1.  Insolvents   imprisoned    twenty    days 

may  he  discharged,  liow.  Ten  days' 
notice  to  be  given.  Oath  taken.  In 
certain  cases  notice  given  to  clerk. 
Court  may  dispense  with  notice, 
when. 

2.  Proceedings  out  of  court  to  be  put  in 

writing,  returned  to  court,  and  re- 
corded. 

3.  Debtors    remaining    in    close    prison 

twenty  days,  may  file  a  schedule. 
Proceedings  thereon.  Oath  of  debtor 
filing  a  schedule. 


Section 

4.  Debtors  filing  schedule  and  taking 
oatli,  discharged. 

6.  Jailor  to  furnish  debtor  with  food; 
if  debtor  is  unable  to  pay,  may  col- 
lect fees  from  creditor.  After  twen- 
ty days,  ;m«y  notify  creditor,  and 
demand  security  for  fees. 

6.  Debtor  in  custody  on  ca.  »a.,  or  after 
judgment,  may  give  bond  to  appear 
nt  next  court.  On  failure  to  appear, 
jiMgment  on  bond.  Upon  tendering 
bond,  to  be  released. 
7.  Bonds  taken  by  constables  returnable 


Chap.  59.] 


INSOLVENT   DEETOES. 


333 


CTION 

i.  Piirticulars  of  fraud  suf^gested  in  writ- 
ing, ou  o.ith. 

I.  Ca.  sa.  not  to  issue  without  alEdavit. 
May  issue  against  one  of  several 
defendants. 

I.  Wlien  the  creditor  is  non-resident, 
who  notified,  &c. 

,.  Property  in  scliedule  to  vest  in  slier- 
iiT  of  the  county  where  filed. 
Sheriff's  duty  about  the  same. 

I.  Commissioners  appointed  to  divide 
debtor's  effects. 

I.  Surety  may  surrender  principal. 

:.  Execution  against  after  acquired  es- 
tate. 

i.  Debtor  swearing  falsely,  deprived  of 
all  relief. 

I.  Female  debtors  not  to  be  imprisoned. 

'.  Debtor  in  prison  bounds  may  take 
the  oath. 

1.  Free  negroes,  committed  for  fine  and 
costs,  and  on  orders  in  bastardy,  not 
discharged  as  insolvents. 


Section 

to  next  county  court.    On  what  days 
of  court ;  penalty  for  foilure. 

8.  When  returned  to  second  court  after 

arrest. 

9.  Schedule  to  be  filed  ten  days  before 

court. 

10.  Case  may  be  continued.    In  case  of 

death,  bond  discharged. 

11.  Debtor,  having  given  notice,  may  take 

oath,  &o.    Discharged  as  to  all  cred- 
itors notified.    Notices  to  be  filed. 

12.  Debtor  appearing  who  has  not  given 

notice,  may  be  imprisoned.    Unless 
court  allow  time. 

13.  On  suggestion  of  fraud,  issues  made 

up.    Delator  examined  on  oath.    Is- 
sues may  be  continued. 

14.  On  fraud  found  or  refusal  to  answer, 

debtor  imprisoned. 

15.  Debtor  on  making  disclosure  and  giv- 

ing notice,  discharged. 

16.  Any  creditor   notified    may    become 

party.     Appeal  by  one  or  more. 

17.  After  issue,  debtor  not  discharged  but 

by  trial  or  consent. 

1.    If  any  person  shall  be  taken  or  charged  on  mesne  process  insolvents  con- 
fer any  debt;   or  shall  be  taken  or  charged  on  execution  for  any  fined  in  jail 
debt  or  damages  rendered  in  any  action  whatever;  or  shall  be  maybed'is- 
committed  for  failing  to  give  bond  for  the  maintenance  of  any  charged,  how. 
bastard  child  charged  upon  him,  or  for  failing  to  pay  any  sum 
of  money  ordered  to  be  paid  by  him  for  its  maintenance ;  or 
shall  be  committed  for  the  fine  and  costs  of  any  criminal  prose- 
cution, and  shall  have  remained  in  prison  for  twenty  days,  the 
court  of  pleas  and  quarter-sessions,  or  any  two  justices  of  the 
peace  of  the  county  wherein  he  may  be  confined,  or  any  judge 
of  the  superior  or  supreme  court,  in  or  out  of  court,  upon  peti- 
tion of  such  prisoner  under  his  hand,  (whereof  ten  days'  notice  Ten  days'  no- 
shall    be    given    to   the  person,  his  executors,  administrators, '''^'^'"'^"Siven. 
attorney,  or  agent,  at  whose  suit  such  prisoner  shall  be  im- 
prisoned,) shall,  by  warrant,  require  the  sheriff  or  keeper  of  the 
prisoner  to  bring  him  before  such    county  court,  justices,  or 
judge,  together  with  a  list  of  the  several  writs,  mesne  processes, 
and    executions  with  which    he    is    charged ;    which  warrant 
every  such  sheriff  or  keeper  shall  obey.     And  if  such  prisoner  Oath  taken. 
have  no  visible  estate,  and  shall  make  oath  before  the  said 
county  court,  justices,  or  judge,  that  he  hath  not  the  worth  of 
ten  dollars  in  any  worldly  substance,  either  in  debts  owing  to 
him  or  otherwise  howsoever,  over  and  above  the  articles  ex- 
empted by  law  from  sale  under  execution;  and  that  he  hath 
not  at  any  time  since  his  imprisonment  or  before,  directly  or 
indirectly,  sold,  assigned,  or  otherwise  disposed  of,  or  made 
over  in  trust  for  himself,  or  otherwise,  any  part  of  his  real  or 
personal  estate,  whereby  to  have  or  expect  any  benefit  or  profit 


334 


INSOLVENT   DEBTORS. 


[Chap.  59. 

to  himsc4f,  or  to  defraud  any  of  his  creditors  to  whom  he  is 

Sgrvenlo'"''''^^'"'^'    ^'''^'^  'f  ^''^■'■•^'   ^"^  "O"'^  P'-*^-^'-"^  tliat  can  prove  the 

clerk.  contrarj-,  such  person  shall  be  immediately  set  at  liberty,  and 

shall  stand  forever  discharged  of  all  executions  against  his  body 

?cn"e  witl  ''o"  ^™  ^''*^  '^'^^^  ®°  ^"'''^'  ^^^''  ^'"^  ^^'  ^°^^^  °^  ^"'^-  Pi'ovidcd,  that  ill 
tio'erwhen!-Ri  ^^^^^  where  the  prisoner  is  committed  for  fine  and  costs,  or  m 
iV8o%3-^'~^^^*^^°^  bastardy  as  aforesaid,  notice  shall  be  served  on  the 
i84o;c.'33,'34;'^''^'''^'  °^  ^^^^  ^ourt  by  which  he  was  committed,  unless  the 
1852,  c.  49.  court,  in  its  discretion,  may  allow  him  to  take  the  oath  of  in- 
solvency and  be  discharged,  without  notice  to  the  clerk. 
ri-ooeedings  2.    The  justices  and  judge  aforesaid,  when  the  proceedin«^s 

Zviiinl'tit  '^'■'^  '^'?fo''e  *h«^m  out  of  court,  shall  put  the  same  in  writing 
ing,  returnej  to  Under  their  hands,  and  return  them  into  court  from  whence  the 
corded!'-R.''s.  '"^^"^  process  or  execution  issued,  or  where  the  commitment 
c.  5S,  s.  2.  \yas  made  ;  and  the  proceedings,  when  such  process  or  execu- 
tion shall  be  issued  by  a  justice  of  the  peace,  shall  be  returned 
to  the  next  county  court,  there  to  be  kept  as  a  record. 

3.  If  any  person  shall  be  taken  or  charged  on  mesne  process 
for  debt,  or  be  in  execution  for  any  sum,  or  otherwise  in  cus- 
tody in  any  of  the  cases  specified  in  the  first  section  of  this 
chapter,  and  shall  have  remained  in  prison  for  twenty  days, 
and  shall  have  any  estate  and  be  minded  to  deliver  up  the 
same  to  his  creditors,  he  may  prefer  a  petition  to  the  court 
from  whence  the  process  issued,  setting  forth  therein  the  cause 
of  imprisonment,  and  in  a  schedule  an  exact  account  of  his 
estate  and  all  circumstances  relating  thereto ;  which  petition 
and  schedule,  subscribed  by  him,  shall  be  lodged  with  the 
clerk  of  the  court  from  which  such  process  issued.  And  there- 
upon the  clerk  shall  issue  a  copy  of  the  said  petition  and 
schedule  to  the  creditors  at  whose  suit  such  prisoner  is  con- 
fined, summoning  them  to  the  next  succeeding  court  to  show 
cause  why  the  prayer  of  the  petitioner  should  not  be  granted; 
and  the  same  being  duly  served  upon  such  persons,  their  exec- 
utors, administrators,  attorney,  or  agent,  ten  days  before  the 
term,  the  court  shall  cause  the  prisoner  to  be  brought  before 
them,  and  if  the  said  creditors  shall  appear,  or  being  duly 
summoned  shall  fail  to  appear,  the  court  shall  proceed  to  hear 
the  petition  in  a  summary  way,  and  shall  tender  to  such  per- 
son an  oath  to  the  following  effect:  — 
Oath  of  debtor  "  1,  A.  B.,  in  the  presence  of  Almighty  God,  solemnly  swear 
nie'!^K.'s  c'!"  *'^^*  t'"'  schedule  now  delivered,  and  by  me  subscribed,  doth 
68, 8.  4.  contain  to  the  best  of  my  knowledge  and  remembrance,  a  full, 

just,  true,  and  perfect  account  and  discovery  of  all  the  estate, 
goods,  and  eflects  unto  me  in  anywise  belonging,  and  such 
debts  as  are  to  me  owing,  or  to  any  person  in  trust  for  me,  and 
of  all  securities  and  contracts,  whereby  any  money  may  be- 
come hereafter  payable,  or  any  benefit  or  advantngc  accrue,  to 
me  or  to  my  use,  or  to  any  other  person  in  trust  for  me;  and 
that  I,  or  any  other  person  in  trust  for  me,  have  not  land, 
money,  or  stock  or  any  other  estate  in  jjossession,  reversion,  or 
remainder,  except  what  is  contained  in  my  schedule  aforesaid. 


Debtors  re- 
maining in 
close  prison 
twenty  days 
mny  file  a 
schedule. 


Proceedings 
thereupon. 


Chap.  59.]  insolvent  debtors.  335 

and  what  is  exempt  by  law  from  sale  under  execution  ;  and 
that  I  have  not,  directly  or  indirectly,  sold,  lessened,  or  otlier- 
wise  disposed  of  in  trust,  or  concealed  any  part  of  my  lands, 
money,  goods,  stock,  debts,  securities,  contracts,  or  estate, 
whereby  to  secure  the  same,  to  receive  or  expect  any  profit  or 
advantage  thereof,  or  to  defraud  or  deceive  any  creditor  to 
whom  I  am  indebted,  in  anywise  howsoever:  so,  help  me 
God." 

4.  If  the  prisoner  take  such  oath  under  the  rules  aforesaid,  ^'j'^*"''?'  *"'"§ 
the  court,  being  convinced  of  the  truth    thereof,  by  warrant  taking  otuh, 
shall  command  the  sheriff  or  keeper  forthwith  to  set  him  at  ^'^g'''"'"®^^-". 
liberty ;  which  warrant  shall  be  a  suflicient  discharge  to  the    '    '  "    '  "  " 
sheriff  or  keeper,  and  shall  indemnify  him  against  any  escape, 

or  action  which  may  be  brought  against  him  by  reason  there- 
of; and  in  any  such  action  he  may  plead  the  general  issue, 
and  give  the  matter  aforesaid  in  evidence. 

5.  When  any  debtor  shall  be  actually  confined  within  the  Jailer  to  fur- 
walls  of  a  prison,  by  mesne  process  for  debt,  capias  ad  satis-  wftuVoodTif 
faciendum,  or  surrender  by  bail  after  judgment,  the  jailer  shall  debtor  mmbie 
furnish  him  with  necessary  food  during  his  confinement  if  the  collect' fees'' 
prisoner  require  it,  for  which  the  jailer  shall  have  the  same  fees  iVom  creditor, 
as  for  keeping  other  prisoners ;  and  if  the  prisoner  be  unable 

to  discharge  them,  may  recover  the  same  from  the  party  at 
whose   instance    such    debtor   was    confined;  and   when   the  After  twenty 
debtor  shall  have  remained  in  jail  for  twenty  days,  the  sheriff  jy ^creditor  and 
or  iailer  may  give  notice  thereof  to  the  iilaintiff,  his  agent  or  (lemiind  secu- 

j  J    o  r  _'  o  ritv  for  tees 

attorney,  and  demand  security  of  him  for  the  prison  fees,  that  r.'s.  o.  5S,  s.  6. 
may  accrue  after  the  expiration  of  that  time ;  and  if  he  shall 
fail  to  give  such  security,  then  the  sheriff  or  jailer  may  dis- 
charge such  debtor  out  of  custody. 

6.  When  any  debtor  shall  be  taken  upon  any  capias  ad  sat-  Pebto 


'tors,  in 


isfaciendtun,  or  after  judgment  be  in  the  custody  of  the  sheriff  j"* or  iifiS-™ 
or  other  officer  by  commitment  of  the  court,  or  by  surrender  of  ju'isment,  may 
bail  out  of  court,  for  any  debt  or  contract  whatever,  and  shall  fpp'ea'r 'at next 
desire  to  take  the  benefit  of  the  oath  for  the  relief  of  insolvent  court. 
debtors,  he  may  tender  to  the  sherifi'  or  other  officer  by  whom 
he  may  be  arrested,  or  in  whose  custody  he  may  be,  a  bond 
payable  to  the  plaintitf  with  good  and  sufficient  security  in 
twice  the  amount  of  the  debt,  conditioned  for  his  appearance 
at  the  next  court  to  which  the  execution  shall  be  returnable,  or 
wherein  the  judgment  may  have  been  rendered,  then  and  there 
to  stand  to  and  abide  by  such  proceedings  as  may  be  had  by 
the  court  in  relation  to  his  taking  the  benefit  of  the  oath  afore- 
said ;  and  in  case  of  his  failure  to  appear,  judgment  shall  be  On  fiiiure  to 
rendered  instanter  upon  said  bond  against  the  principal  and  uia™ou'bond. 
his  sureties,  to  be  discharged  u|)on  the  payment  of  the  debt 
and  costs;  and  where  an  execution  issues  thereon,  neither  of 
the  defendants  shall  be  entitled  to  the  provisions  of  this  sec-  ?'f™J''"''?''" 
tion.     xVnd  every  debtor  tendering  such  bond,  shall  be  entitled  K-,Tsf.i.— it.  s. 
to  his  release  from  confinement  or  custody.  "^^  •'*''''• "'  ^• 

7.    When  the  constable  or  other  officer  shall  take  such  bond.  Bonds  tukcu by 


336  INSOLA'ENT   DEBTORS.  [ChAP.    59. 

ZmbittV''    "'■'""  ^"  ^^^^^'  ^y  ^'^'■^"^  ""^  **"  execution  issued  by  a  justice 
ncxt'couiity      °^  ^•^'^  peace,  or  upon  a  surrender  to  him  in  the  manner  here- 
court.       ■       inbefore  provided,  after  any  judgment  rendered  by  a  justice  of 
the  peace,  it  shall  be  conditioned  for  the  defendant's  appear- 
ance at  the  next  county  court  of  the  county,  wherein  such 
constable  or  other  ollicer  resides;  which  bond,  with  all  other 
On  what  days   P'^^P^''^  apijertaining  to  the  case,  shall  be  returned  to  the  court. 
of  court;  per.-  On  or  before  the  second  day  of  the  term,  under  the  penalty  of 

-k  s^c^'er'  ^^^y  ^^"'^'^^''  ^"  '^^'^^^  °*'  ^^^  parties,  to  be  recovered  against  the 
s.  7.  '    constable  or  otiier  officer. 

t^"4"d™      ^-    "^^'I'e'ievcr  there  shall  not  be  twenty  days  between  the 
after  arrest.-    arrest  undcr  any  capias  ad  satisfaciendum  or  sancnthr  to  the 
R.  S.  c.  58,  s.  7.  custody  of  any  ollicer,  as  provided  in  the  two  preceding  sec- 
tions, and  the  court  to  which  the  bond  is  returnable,  the  bond 
shall  be  conditioned  for  his  appearance  at  the  term  of  court 
next  after. 
fiM^?"'^ri'''  ^^      ^'    ■^'^'•'''y  tlebtor  who  shall  have  given  bond  as  aforesaid, 
before'couT-  ^"^  ^h^^l  ''ave  any  projjcrty,  money,  or  elfects,  shall  file  with 
E.  S.  c.  58,  s.  the  clerk  ot  the  court  a  full,  true,  and  accurate  schedule  of  the 
same,  specifying  therein  what  portion  of  his  estate  ho  claims 
to   be   exempt  from  execution,  ten  days  before   the  term,  at 
which  he  will  avail  himself  of  the  benefit  of  the  provisions  of 
this  cha|)ter. 
contlS"'        ,1^-    Whenever  it  shall  appear  to  the  court,  that  any  debtor 
In caseof death,  who  may  have  given  bond  is  prevented  from  attending  court 
ed°"-E.s!c:'58;  ^7  sickness  or  other  sufficient  cause,  the  case  shall  be  con- 
s.  7.  '  tinued  to  the  next  term,  when  the  same  proceedings  shall  be 

had  as  if  he  had  appeared  according  to  the  condition   of.  his 
bond  ;  and  if  he  shall  die  in  the  mean  time  his  bond  shall  be 
discharged. 
?ve"cl',""      }}■ ,  Upon  the  appearance  of  the  debtor  at  the  court  afore- 
may  take  oath,  said,   he  may  pray  the  court  to  be  allowed  to  swear  to  his 
^<=-  schedule,  if  any  has  been  filed,  and  take  the  oath  prescribed 

for  insolvent  debtors:  and  if  it  shall  appear  that  ten  days' 
notice  has  been  given  in  writing  to  his  creditors  of  his  inten- 
tion to  take  such  oath,  he  shall  be  allowed  to  take  the  same, 

tocredtors"'   ^"'^  *'^*^  '^'^^^^  ^''^^'  ^'^^^'^'^  ^'^^  proceedings;  and  thereafter  the 
notified.  body  of  the  debtor  shall  be  free  from  imprisonment  for  debt,  as 

616.1-^8%  ^°  ^^'^'■y  creditor,  and  as  to  him  only,  to  whom  such  notice 
58,  s.  10.        ■  may  have  been  given  ;  and  the  notices  shall  be  filed  with  the 
clerk  of  the  court. 

infwhoTs""  ^~-  ^^'  ^1'  '^"y  ^as*^  where  the  creditor,  at  whose  instance 
not  given  no-  the  debtor  is  arrested,  shall  not  have  suggested  frautl  or  con- 
Spri"oned°  ccalment,  the  debtor  will  appear,  and  shall  fail  to  prove  that 
he  has  duly  notified  such  creditor,  he  shall,  on  motion  of  the 
creditor,  be  adjudged  to  be  imprisoned  until  he  shall  give  such 
.iiw't'ime-  "°*''^'^  "*"  P*""^"  ^'"-'  ^^"^'^  *"  have  been  given.  Provided,  how- 
K.^s.  c'.Ts,  s.  ^^''^'■'  ^'lat  "pon  good  cause  shown,  the  court  may  allow  fur- 
1"-  ^her  time   to  give  such  notice,  or  to  prove  the  same  to  have 

been  given. 
On  suggestion       13.   Provided,  alwai/s,  that  if  any  creditor  notified  shall  su"- 


Chap.  59.]  insolvent  debtors.  337 

gest  any  fraud  or  concealment  of  any   property,  money,  or  of  fraud,  issues 
other  estate,  the  court  shall  direct  proper  issues  to  be  made  up  ™^<i''"P- 
and  tried  by  a  jury  at  the  first  term,  and  before  the  debtor  is 
sworn,  who  may  be  examined  on  oath  on  the  trial  of  such  r,  ,  ^ 

• />     I  I*  1     11  -         -  iJebtor  exam- 

issues,  it  the  creditor  shall  require   it;  but   he   shall   not  be  ined  ou  oath. 

allowed  to  deny  the  execution  of  the  bond  except  on  oath  in  contlniTd^E 

writing.     Provided,  a/so,  that  if  either  of  the  parties  shall  be  S.c.  68,  s.  lo. 

unprepared  for  trial,  the  court,  as  in  other  cases,  may  continue 

the  cause. 

14.  If,   on  the  trial,   the  jury  shall  find  that  there  is  any  On  fraud  found 
fraud  or  concealment,  or  if  the  debtor  shall  fail  or  refuse  to  "nswOT^^debtor 
answer  upon  oath,  then  the  debtor  shall   be  deemed   in   the  imprisoned.— 
custody  of  the  sheriff,  and  shall  be  adjudged  to  be  imprisoned,  fo.  ^'  °'  ^^'  ^' 
until  a  full  and  fair  disclosure  of  all  the  money,  property,  or 

effects  be  made  by  the  debtor. 

15.  Where  any  debtor,  upon  the   finding  of  the  iury  that  pc'Jtoronmak- 

,,  •      r  1  1  i       1      11    1  1  •      1        1     ,       .         •         ing  disclosure 

there  is  fraud   or  concealment,  shall  be  adjudged  to  be  im-  and  giving  no- 
prisoned  until  a  full  and  fair  disclosure  be  made,  siich  debtor,  ticedischarged. 
upon  making  a  full  and  fair  disclosure  in  writing  of  all  the  s,  li.    '    '     ' 
money,  property,   or  effects,  and  upon   giving  the   necessary 
notice,  shall   be  discharged  by  taking  the  oath  prescribed  in 
section  three  of  this  chapter. 

16.  The  court  may  permit  as  many  of  the  creditors  notified,  Any  creditor 
as  shall  choose,  to  make  themselves  parties  to  the  issues,  but  becmne  pat-Iy. 
the  debtor  shall  not  be  compelled  to  answer  the  suggestions  of  Appeal  by  one 
fraud  in  more  than  one  case.     And  if  any  of  the  creditors,  cl^5g°s^'^^'^' 
where  there  are  more  than  one,  shall  be  dissatisfied  with  the 
judgment  of  the  court,  he,  or  as  many  as  choose,  may  appeal, 
nohvithstanding  some   of  the  creditors,   parties  to  the  issue, 

may  decline  to  appeal ;  and  the  suit  shall  be  prosecuted  fifter- 
wards  by  the  appealing  creditors. 

17.  After  an  issue  made  up,  the  debtor  shall  not  be  at  lib-  After  issue,  dis- 
erty  to  discharge  himself,  as  to   the  creditors    in  that  issue,  byTmi'.-^'il'^'s. 
except  by  trial  and  verdict  in  the  same,  or  a  discharge  by  con-  <=.  58,  s.  21. 
sent. 

18.  The  court  shall  not  permit  an  issue  of  fraud  to  be  made  Particulars  of 
up  and  tried  under  the  provisions  of  this  chapter,  unless  the  ed^hi'^wltfu^ 
creditor,  his  agent,  or  attorney,  shall  file  a  suggestion  in  writ-  on  oath.— IS44' 
ing,  specifying  therein  the  particulars  of  such  fraud  or  conceal-  "'  ^^'  *•  ^' 
ment,  and  shall  annex  to  the  said  suggestion  his  affidavit  that 

he  verily  believes  the  truth  of  the  matters  therein  stated. 

19.  No  capias  ad  satisfaciendum  shall  issue,  unless  the  plain-  pf-  sn.  not  to 
tiff,  his  agent,  or  attorney,  shall  make  affidavit  in  writing  be-  affijl,"!'.!!?"'' 
fore  the  clerk  of  the  court  in  which  such  judgment  may  be,  or  ifcii,  c.  31, s.  1. 
before  the  justice  of  Ihe  peace  to  whom  application  is  made 

for  such  ])rocess,  that  he  believes  the  defendant  has  not  prop- 
erty sufficient  to  satisfy  such  judgment,  which  can  be  reached 
by  a  fieri  facias,  and  has  property,  money,  or  effects,  which 
cannot  be  reached  hy  fieri  facias ;  or  has  fraudulently  con- 
cealed his  property,  money  or  effects;  oris  about  to  remove 
from  the  State,  v^nd  where  the  judgment  shall  be  against  two  "■'>'  's^'^'^ 
29 


338  INSOLVENT  DEBTORS.  [ChAP.    59. 

sem-^' defend'  "'"  "^°'"'^'  ^^'^""o''  ^o™^  of  them  may  be  solvent,  the  plahitifT 
aiits!      ^  ^°  '  may  issue  such  capias  against  any  of  the  defendants,  of  whom 

and  whose  property  he  may  make  said  affidavit. 
tOTre"'=ideT'^'"  20.  When  the  person  to  be  notified  shall  reside  out  of  the 
abroad,  who,  State,  the  notice  may  be  served  on  his  attorney  or  agent,  or 
fi'ed-irs°c''  *^^  constable  who  has  charge  of  the  claim ;  and  if  there  be  )io 
58,  s.  13."  '  "'  known  agent  or  attorney  who  resides  in  the  county,  notifica- 
tion made  in  any  newspaper  in  the  State,  by  two  publica- 
tions, shall  be  sufficient. 
Property  in  21.   All  the  estate,  right,  and  interest  of  any  person  who 

ed'fn^herS'ofmay  file  a  schedule,  and  all   the  right,  interest,  and   estate, 
county  where    wdiich    he    may   lawfully    depart    with,    contained    in    such 
schedule,  shall  be  vested  in  the  sheriif  of  the  county  where  the 
schedule  may  be  filed,  except   such   of  the   estate  in  the  said 
Sheriff's  dut'    ^^^^^'^'''^  Contained,  as  may  be  exempt  from  sale  under  execu- 
as  to'the  same,  tion ;  and  such  sheriff  shall  sell  at  public  auction,  and  convey 
R  S.  c.  58,  s.    the  said   estate,  right,  and  interest  to  him  who  will  give  the 
best  price  for  the  same ;  and  the  proceeds  thereof,  and  all  debts 
and  demands  contained  in  said  schedule,  (which  the  sheriff 
may  collect  in  his  own   name,)  shall  be  paid  by  the  sheriff, 
upon  oath,  into  the  ofRce  of  the  court  of  pleas  ancl  quarter-ses- 
sions  of  his  county,  to  be  distributed  as  hereinafter  provided. 
ap^whltedto""      22.    The  court  where  any  schedule   may  be  filed,  shall  ap- 
divide  debtor's  point  two  Commissioners,  who  shall  examine  into  the  claims 
e.  M.^sfis."   '    of  all  the  creditors  of  the  person  rendering  such  schedule,  as 
well  of  those  at  whose  suit  he  was   arrested  as  of  all  others ; 
and  the  commissioners,  by  advertisement  at  the  court  house, 
and  in  some  newspaper  if  they  deem  it  necessary,  shall  make 
known  the  time  at  which  they  propose  to  examine  such  claims, 
which  shall  be  within  sixty  days  after  their  appointment ;  and 
upon  such  creditors,  their  executors  or  administrators,  agents 
or  attorneys,  appearing  and  satisfying  them  of  the  justice  of 
their  claims,  they  shall  proceed  to  make  distribution  amongst 
the  creditors  so  appearing,  in  proportion  to  their  respective  de- 
mands ;  and  the  clerk  of  the  court  shall  pay  the  moneys  re- 
ceived from  such  insolvent's  estate,  to  the  commissioners  for 
the  purposes  aforesaid. 
surrtndorYis         23.    The  surety  in  a  bond,  conditioned  for  the   appearance 
principal.— E.    of  any  person  at  court  and   for  his  taking  the  oatii  of  insol- 
.0.5  ,3.9.     vg,^py^  ,^-,^y  surrender  the  principal  in  discharge  of  himself  in 
open  court  of  the  county  where  he  is  bound  to  appear,  or  to 
the  sheriff  or  other  ofl[icer  of  such  county,  and  such  surety  shall 
have  all  the  power  which  special  bail  have  over  their  ])rini-ipal. 
Jl^'imt','Tftcr         24.    In  all   cases  of  the  discharge  of  an    insolvent  debtor, 
acqnire'dcs-      under  any  of  the  provisions  of  this  chapter,  execution   may 
5S,"sri6.'  ^'  "■  ^^^"°  against  any  estate  afterwards  acquired  by  him. 
Debtor  swear-       25.    If  any  person  shall  falsely  and  corruptly  take  any  of  tlie 
plfved  of'Ilif"  oaths    prescribed    in    this  chapter  for   tlie  relief  of  insolvent 
relief.— R.  s.  c.  debtors,   and   upon   indictment  of  perjury  shall  be  convicted 
68,  s.  17.  tlicreof,  he  shall  suffer  all  tlie  pains  of  wilful  perjury,  and  never 

after  have  any  of  the  benefits  of  this  chapter,  but  may  be  sued 


Chap.  60.] 


INSPECTIONS. 


339 


and  imprisoned,  as  though  he  had  never  taken  the  oath  of  in- 
solvency. 

26.  No  female  shall  be  arrested  or  imprisoned  for  debt. 

27.  Any  debtor  who  may  be  in  prison  on  account  of  debt, 
whether  under  mesne  process  or  otherwise,  may  take  the  bene- 
fit of  the  prison  bounds  by  giving  security  as  required  by  law, 
and  shall  not  be  compelled  to  go  into  close  prison  in  order  to 
avail  himself  of  this  chapter.  Provided,  hotvever,  that  no 
debtor,  ~Sgainst  whom  an  issue  is  found,  or  who,  for  other 
cause,  is  adjudged  to  be  imprisoned  untU  he  make  a  full  and 
fair  disclosure  of  his  property,  shall  be  entitled  to  the  benefit 
of  the  prison  bounds,  but  he  shall  remain  in  close  prison,  until 
discharged  by  being  permitted  to  take  the  oath  of  insolvency. 

28.  Nothing  in  this  chapter  contained  shall  extend  to  free 
negroes,  who  may  be  committed  for  fine  and  costs  in  criminal 
prosecutions,  or  upon  any  judgment  in  a  case  of  bastardy. 


Sect.  5.  WJien  creditor  liable  for  jail  fees,  13  Ire.  235, 10  lb.  <17.  Prisoti  bounds,  13 
Ire.  10. 

Sect.  6.  Bond:  form  and  effect  of,  U  Ire.  613,  3  Ire.  42,  3  D.  &  B.  9,  2  Dev.  12,  lb. 
254,  3  Dev.  95,  1  D.  &  B.  113.  Who  may  give,  2  D.  &  B.  356 ;  for  debt  oidy,  2  D.  &  B. 
490;  defence,  12  Ire.  136;  by  surety,  1  Ire.  106. 

Sect.  7.  Returned,  when,  5  Ire.  149.  Surrender  of  prkoncr  by  surety,  2  Dev.  254,  8 
L-e.  201. 

Sect.  8.  Deblcr  may  waive,  9  Ire.  331. 

Sect.  9.  Schedule,  11  Ire.  609,  1  lb.  501.  May  assign  property  after  arrest,  3  Ire.  Eq. 
568. 

Sect.  11.  Notice,  after  continuance,  2  Ii'e.  17. 

Sect.  12.  Exceptions  too  late  after  issue,  8  Ii-e.  211,  9  lb.  28,  3  lb.  42 ;  joinder  of  issues,. 

5  Ire.  649. 

Sect.  13.  Effect  of  verdict  of  fraud,  6  Ire.  285, 1  Dev.  233.     Commitlitur  in  execution, 

6  Ire.  119. 

Sect.  17.  Form  of  affidavit,  8  Ire.  517. 
Sect.  19.  4  D.  &  B.  461. 


Female  debtor 
not  to  be  im- 
prisoned.— R. 
S.  c.  58,  s.  18. 
Debtor  in 
bounds  may 
tal^e  tlie  oath. 
— R.  S.c.  58,s. 
19. 


Free  negroes, 
in  bastardy  ca- 
ses, &c.,  not 
discliargeil  as 
insolvents. — 
1838,0.23; 
1840,  c.  29. 


CHAPTER    60. 


INSPECTIONS. 


Section 
,     1.  Former  places  of  landing  and  inspec- 
tion continued;  county  courts  may 
appoint  others. 

2.  Inspectors  appointed  by  county  courts. 

Proviso  as  to  inspectors  in  Craven 
county. 

3.  To  give  bonds.    Benew.able  yearly. 

4.  To   attend  at  times   and  places   ap- 

pointed. 

5.  E.Kporting  merchant  not  to  be  inspec- 

tor; penalty. 
0.  Not  to  be  more  than  six  inspectors  in 

any  town,  except  Wilmington. 
7.  Not  to  have  deputies.     Proviso  for 

flour  inspectors. 


Section 

8.  To  hold  office  during  good  conduct. 

How  removed.  Two  general  inspec- 
tors for  Wilmington  appoii;ted  by 
commissioners. 

9.  Vacancies,  how  filled  when  between 

terms  of  court.  Assistants  in  certain 
cases. 

10.  Principal  liable  for  acts  of. 

11.  Inspectors  of  tobacco,  duty  of. 

12.  To  give  a  manifest  of  e.ach  hogshead. 

13.  Condemned    tobacco    may   be   rein- 

spected  after  six  months. 

14.  None  to  be  exported  uninspected. 

15.  Penalty    for   falsely    braudiug   hogs- 

head. 


540 


INSPECTIONS. 


[Chap.  60. 


Section 

16.  Forgery  of  stamp,  note,  S:c.,  of  tobacco 

inspector. 

17.  Manner  of  proceeding  wlien  a  note  is 

lost. 

18.  Proceejings  by  one  demanding  bis 

tobacco,  injured  since  inspection. 

19.  Turners  up  and  coopers  appointed. 

20.  Inspectors  to  report  to  court  the  mis- 

beliavior  of  turners  up.  Owners  may 
turn  up,  &c.,  their  tobacco. 

21.  Piclters  of  tobacco  appointed. 

22.  No  inspector  to  buy  tobacco. 

23.  Warcliouses  may  be  built  or  rented. 

24.  When  warehouse  is  burned,  Inspector 

not  liable,  &o. 

25.  Warehouse  rent  regulated,  &c. 

26.  Warehouses,  how  repaired,  &c. 

27.  Rules  of  private  warehouses,  as  to 

reut,  &c. 

28.  Inspectors  of  tobacco  for  FayetteviUe. 

29.  To  designate  qualities,  &c. 

30.  To  take  for  inspection  lugs  from  each 

break. 

31.  Inspector  of  flour  not  to  trade  in  it. 

32.  Degrees  of  flour. 

33.  Barrel  of,  to  weigh  196  pounds,  net. 

What  flour  to  pass  inspection. 

34.  Penalty  on  miUer,  manufacturer,  or 

seller,  violating  foregoing  provisions. 

35.  Inspectors  may,  in  certain  cases,  un- 

pack flour. 

36.  Seller  of  barrels  deficient  in  quantity, 

liable,  &c. 

37.  Casks  of  flour,  how  inspected. 

38.  Owner  dissatisfied,  how  to  obtain  a 

reiixamination. 

39.  Penalty  for  exporting  flour,  not  passed 

by  inspector. 

40.  On    shipper    receiving    uninspected 

flour.    Proviso. 

41.  Flour  not  liable  to  be  reinspected,  in 

sixty  days. 

42.  Cask  not  condemned  in  certain  cases, 

if  it  contain  196  pounds. 

43.  Penalty  for  packing  flour  in  a  branded 

cask. 

44.  For  altering  inspector's  brand,  &o. 

45.  On  inspectors,  neglecting  duty. 

46.  Flour  may  bo  sold    in   FayetteviUe 

without  inspection. 

47.  "  Ban-el"  or  "  cask  of  flour"  to  include 

half  barrel. 

48.  Inspectors  of  beef,  &c.,  duty  of;  pen- 

alty for  misconduct. 

49.  Beef  and  pork  inspected,  how. 

50.  Hog's  lard  inspected. 


Section 

51.  Rice,  how  inspected. 
62.  Fish,  how  inspected. 

53.  Barrels  of  turpentine  and  tar,  weight 

of;  of  pitch,  &c.,  size  of,  &c.  Water 
not  a  fraudulent  mixture  in  tar. 
Allowance,  where  barrels  weigh 
more  or  less  than  standard  quantity. 

54.  Turpentine  barrels    to    be  branded. 

Penalty  on  inspector  failing. 

55.  llakers  of  tar,  pitch,  turpentine,  to 

brand  with  initials  of  their  names. 
Inspector  to  keep  a  book  and  enter 
maker's  name,  &c. 

56.  Beef,    cfcc,   reinspected,    if    not   ex- 

ported in  sixty  days.  Tar,  pitch,  or 
turpentine  in  twenty  days. 

57.  No   cooper  to  make  barrels  for  sale 

but  as  directed  in  tins  chapter. 

58.  Seller  or  exporter  of  beef,  &c.,  to 

produce  inspector's  certiflcate,  &c. 
Penalty. 

59.  Penalty  on  masters   receiving    them 

uninspected. 

60.  Proviso  as  to  Newbern. 

61.  Shingles,  of  what  size. 

62.  Lumber,  how  inspected. 

63.  Inspectors  of  saw-mill  lumber,  near 

Wilmington,  appointed. 

64.  Lumber    and    ton    timber,   how    in- 

spected on  Cape  Fear  river.  Penalty 
for  inspecting  lumber  bj'  other  rules. 

65.  Steam  mill  lumber,  how  inspected. 

66.  Saw-mill  lumber  and  ton  timber,  how 

measured. 

67.  Shingles,  boards,  &c.,  to  be  culled. 

68.  No  inspector  to  purchase  cuUings,  &c. 

69.  Penalty  and  misdemeanor,  for  falsely 

acting  as  legal  inspector. 

70.  Fines,  &c.,  under  this   chapter,  how 

applied. 

71.  Disputes  about  extra  cooperage,  &c., 

in  Wilmington,  how  determined. 

72.  Sale  of  firewood  in  towns,  to  be  by 

cord. 

73.  Inspectors  of  wood  for  Newbern.  ♦ 

74.  Of  provisions  and   forage,  appointed 

by  any  county. 

75.  Duty  of  such  inspectors. 

76.  Shall  give  bond.    Fees. 

77.  Penalty  (or  selling  forage  or  provisions 

without  inspection. 

78.  Inspector    of    forage,   &c.,  may  ap- 

point deputy. 

79.  Fees,  by   whom   paid.     Penalty   for 

taking  greater  fees  than  allowed. 


Former  places       J.    ^.11  sucli  places,  as  have  been  ostabli.shed  by  law,  or  by 

oflandnigand    ,,  ,  -'  '  ....  •',.,r 

inspection  con-  the  Order  ot  any  county  court  within  its  county  as  pubhc  land- 


Chap.  CO.]  inspections.  341 

ino-s,  or  as  places  of  inspection,  shall  be  and  remain  public  tinued;  county 

,    °  ,'.  ',      ,  r  ■     ^        1-  1  J.L  i.  i  courts  may  .ip- 

landmgs  and  places  of  inspection  ;  and  the  county  courts  may  poi,,t  others.— 
appoint  such  public  landings  and  places  of  inspection,  within  K-  .s.  c.  59,f.  i. 
their  respective    counties,  as  they  may  think   necessary  and 
convenient :    and  on  any  petition  for   a  public  landing,  the 
court  may  order  the  costs  to  be  paid  by  the  petitioner  or  by 
the  county. 

2.  The  several  county  courts,  except  when  herein  otherwise  Inspectors  ap- 

,.  .  .     ,      "^  •  i.  r        xl  T  pointed  bv 

directed,  may  appoint  one  or  more  inspectors  lor  the  place  or  county  courts. 
places  of  inspection,  who  shall  inspect  such  articles,  as  by  law  — K-  S.  c.  59, 
are  required  to  be  inspected,  which  may  be  brought  to  his  place  ^' 
of  inspection  for  that  purpose  ;  which  inspectors  shall  reside  in 
the  county  where   appointed,  and  take  the  oaths  required  by 
law.     Provided,  however,  that   inspectors    of  turpentine   and  J^°^ll^^^ll° 
naval  stores  in  the  county  of  Craven,  for  the  places  of  inspec-  Craven  county. 
tion  provided  by  the  court  of  pleas  and  quarter-sessions,  shall  '^^^^^' ^  ^^'^- 
be   elected  by  the  citizens  of  the  county  qualified  to  vote  for 
members  of  the  house  of  commons,  at  the  time  of  the  election 
of  members  of  Congress,  in  the  year  one  thousand  eight  hun- 
dred and  fifty-five,  and  at  the  same  time  every  two  years  there- 
after ;  and  the  polls  shall  be  opened  and  held  under  the  same 
rules  and  regulations  as  polls  for  members  of  the  General  As- 
sembly ;  and  the  sheriff,  or  other  officer,  qualified  to  hold  such 
elections,  shall,  at  the  court  house,  declare  the  persons,  having 
the  highest  number  of  votes,  duly  elected  inspectors  as  afore- 
said, who  shall  continue  in  office  for  two  years  next  after  their 
qualification,  and  until  their  successors  shall  be  elected  and 
qualified ;  and  if  two  persons  shall  have  an  equal  number  of 
votes,  the  sheriff  shall  make  the  election  as  provided  for  mem- 
bers of  the  General  Assembly.     If  a  vacancy  shall  occur  by 
death   or  otherwise,  the   court  of  pleas  and  quarter-sessions 
(seven  justices  being  present)  may  appoint  some  suitable  per- 
son to  fill  the  unexpired  term. 

3.  Every  inspector  shall,  in  the  county  court  of  his  county.  To  give  bonds, 
give  bond  with  two  sufficient  sureties,  in  the  penalty  of  one 
thousand  dollars,  for  the  faithful  discharge  of  the  duties  of  his 

office,  payable  to  the   State  of  North  Carolina,  and  renewed  ^^^^^^^p  s_ 
annually  as  in  the  case  of  clerks  of  courts.  c.  59," s.  3. 

4.  The   several   inspectors   shall   attend,  at  the   times   and  ^o^^^"™^  "t^ 
places  by  law  established  and  directed,  to  inspect,  according  to  places  appoint- 
the  nature  of  their  several  appointments,  all  such  tobacco,  beef,  ^g""^"  ^'  *^' 
pork,  rice,  tar,   pitch,  turpentine,  fish,  flour,  butter,  flaxseed, 

sawed  lumber,  ton  timber,  and  shingles,  as  shall  be  exposed  to 
sale  for  exportation  within  their  respective  counties. 

5.  No  merchant,  who  shall  be   concerned  in  the  trade  and  ^^P^j^''"? 
purchase  of  produce  for  exportation  requned  to  be  inspected,  to  be  inspector, 
shall  be  appointed  inspector.     And  if  any   person,  receiving  — ^-  S-  ^'-  ^^> 
such  appointment,  shall  be  concerned  as   a  merchant  in  the  penalty, 
exportation  of  such  produce,  he  shall  forfeit  the  sum  of  sixty 

dollars,  and  be  removed  from  office  by  the  county  court,  on 
29* 


342 


INSPECTIONS. 


[Chap.  60. 


Not  to  be  more 
than  six  in- 
spectors in  any 
town.— R.  S.  c. 
59,  s.  6. 
Except  Wil- 
mington.— 
1852,  c.  134, 
s.  2. 

Not  to  Iiave 
deputies. 

Proviso  for 
flour  inspec- 
tors.—R.  S.  c. 
89,  s.  7. 


To  hold  office 
during  good 
conduct. 


Two  general 
inspectors  for 
Wilmington 
appointed  by 
commissioners. 
—1854,  c. 


Vacancies, 
how  filled  be- 
tween terms  of 
court. 

Assistants  in 
certain  cases. — 
E.  S.  c.  69,  s.  9. 


Principal  liable 


motion  made  by  the  solicitor  of  the  county,  on  producing  the 
record  of  the  recovery  of  the  said  penalty. 

6.  The  county  court  shall  not  appoint  in  any  of  the  towns 
more  than  six  inspectors,  except  for  the  purpose  of  inspecting 
timber ;  in  which  case  the  court  may  appoint  sucli  number  as 
they  may  consider  necessary.  Provided,  lioiccccr,  that  the 
county  court  of  New-Hanover  may  appoint  eight  or  more 
inspectors  of  naval  stores  for  the  town  of  Wilmington. 

7.  No  inspector  shall  appoint  a  deputy,  (except  wlien  herein 
otherwise  directed,)  under  the  penalty  of  two  hundred  dollars. 
Provided,  that  if  the  quantity  of  flour,  brought  to  any  place  of 
inspection,  should  at  any  time  be  so  great  that  the  inspector 
cannot  examine  the  same  with  sufficient  despatch,  or  if,  by 
reason  of  sickness,  he  should  be  incapable  of  discharging  the 
duties  of  his  office,  he  may  appoint  one  or  more  persons,  of 
good  repute  and  skilled  in  the  quality  of  flour,  to  assist  him  in 
the  execution  of  his  office ;  who  after  having  taken  tiie  oaths 
prescribed  by  law  for  the  inspectors  of  flour,  shall  be  authorized 
to  inspect  and  brand  flour  in  the  same  manner  as  the  inspector. 
Provided,  that  the  inspector  shall  be  liable  for  all  misconduct 
in  office,  of  his  deputies. 

8.  All  inspectors  shall  hold  their  offices  during  good  behavior, 
unless  otherwise  directed.  «  Inspectors  of  naval  stores  and  lum- 
ber for  the  town  of  Wilmington  shall  be  appointed  by  the 
county  court  of  New-Hanover,  every  tw^o  years,  at  the  first 
court  held  after  the  first  day  of  March  ;  and  where  any  inspector 
shall  be  guilty  of  neglect,  malpractice,  or  misbehavior  in  office, 
on  complaint  made  to  the  county  court,  they  shall  summon 
him  to  ap)5ear  before  them  at  the  ensuing  term ;  and,  if  he  is 
found  guilty  by  the  verdict  of  a  jury,  they  shall  remove  him 
from  office,  and  appoint  another  in  his  stead.  Two  inspectors, 
whose  duties  shall  be  to  inspect  flour,  provisions,  and  forage 
for  the  town  of  Wilmington,  shall  be  appointed  by  the  com- 
missioners of  the  town  of  Wilmington,  said  commissioners 
having  the  right  to  specify  the  articles  to  be  inspected,  the 
mode  of  inspection,  and  the, fees  to  be  paid  for  the  same,  and 
the  length  of  time  that  said  inspectors  shall  hold  their  office; 
and  if  any  such  inspector  shall  be  guilty  of  neglect,  malprac- 
tice, or  misbehavior  in  office,  said  commissioners  shall  have 
power  to  remove  him  from  office,  and  appoint  another  in  his 
stead. 

9.  Whenever  there  shall  be  a  vacancy  in  the  office  of  in- 
spector, while  the  county  court  is  not  in  session,  any  three 
justices  may  appoint  some  other  fit  person,  until  tiie  next  suc- 
ceeding court;  or  if  any  inspector  shall  be  rendered  incapable 
of  performing  his  duty  by  sickness,  or  other  accident,  he  may, 
with  the  consent  of  three  justices,  appoint  some  other  person 
as  assistant  during  his  sickness,  or  other  disability;  which 
consent  shall  be  certified  under  their  hands,  and  lodged  with 
the  clerk  of  the  court. 

10.  Such  assistant  shall  take  the  same  oaths  as  inspectors ; 


Chap.  60.]  inspections.  343 

and  the  inspector  shall  be  liable  to  the  same  fines  and  penalties  *'"'■  "'''^  °^-— 
for  the  assistant's  misbehavior,  as  for  his  own.  '  '  °-^^'^-^- 

11.  Inspectors  of  tobacco  shall  examine  well  and  carefully,  Inspectors  of 
by  breaking  in  at  one  or  more  places,  every  hogshead,  cask,  or  of.— "e"!  c^m 
parcel  of  tobacco,  brought  to  their  respective  warehouses  for  ^-  ^i- 
inspection ;  and  such  tobacco  as  they  shall  find  good,  sound, 

and  merchantable,  and  fit  for  exportation,  they  shall  cause  to 
be  immediately  headed  and  hooped,  and  the  number,  net 
weight,  and  tare,  with  the  name  of  the  warehouse,  stamped  or 
marked  thereon ;  and  for  all  tobacco,  passed  by  them  in  crop 
hogsheads,  they  shall  give  to  the  owner  a  receipt,  or  note,  con- 
taining the  warehouse,  number,  gross,  tare,  and  net  weight, 
and  the  kind  of  tobacco,  and  therein  oblige  themselves  to  de- 
liver such  tobacco  to  the  owner,  or  his  order,  when  demanded : 
and  for  all  such  tobacco  as  they  shall  pass  in  parcels,  they  shall 
give  the  owner  a  transfer  note;  and  all  such  parcels  they  shall 
immediately  pack  and  prize  into  hogsheads,  of  at  least  one 
thousand  net  weight,  to  be  by  them  paid  in  discharge  of  such 
transfer  notes  to  the  persons  who  shall  be  possessed  of  them, 
deducting  therefrom,  when  returned  to  them,  at  the  rate  of 
two  per  cent,  for  the  first  month,  and  one  per  cent,  for  every 
month  after  one,  for  shrinkage ;  and  may  also  charge,  out  of 
such  notes,  thirty  pounds  of  tobacco  for  the  cask ;  and  where 
tobacco  is  offered  for  inspection,  and  it  appears  that  part  there- 
of only  is  fit  to  pass,  the  owner  may  separate  the  good  tobacco 
from  the  bad ;  and  where  the  inspectors  at  any  warehouse 
shall  disagree  in  their  opinion  of  the  quality  of  any  hogshead 
of  tobacco,  or  where  the  tobacco  is  the  property  of  one  of  the 
inspectors,  then  another  sworn  inspector  from  the  nearest  ware- 
house, or  a  justice  of  the  peace,  shall  be  called  and  decide,  and 
receive  or  reject  the  same. 

12.  Where  any  tobacco  shall  be  delivered  out  of  a  ware- Togivcamani- 
house,  the  inspectors  shall  give  a  separate  manifest  of  each  [®'_^'?*'<'=l'''^ 
hogshead  delivered,  in  which  shall  be  inserted  the  marks,  num-  s.  c.  69,  s7i2.' 
ber,  and  weight. 

13.  The  proprietor  of  condemned  tobacco  shall  have  the  Condemned  to- 
privilcge  of  letting  it  remain  in  the  warehouse  six  months  after  ''"''TI^'^l 
inspection,  and  shall  be  entitled  to  have  the  same  reinspected,  — R.  s.'c.  59, ' 
if  he  think  proper.  ^-  ^^■ 

14.  No  tobacco  shall  be  exported  out  of  the  State,  until  the  None  csiiorted 
same  has  been  carried  to  some  place  of  inspection,  and  there  T>"'c^''®J'i^'''77 

1  1  1  1  T  11-  1^.  o.  c.  oy,  S.  14. 

viewed,  passed,  and  stamped  accordmg  to  the  directions  of  this 
chapter. 

15.  If  any  person  shall  brand,  or  cause  to  be  branded,  any  Penalty  for 
hogshead  of  tobacco,  which  the  inspectors  have  not  examined  falsely  brand- 

1    u         J     1         -ii  •  i      ■      7  1     T    I-    ,  1      ,  11  ni<r  hogshead. 

and  branded,  with  a  view  to  induce  a  belief  that  such  hogs- — i;.  s.  c.  59, 
head  had  been  lawfully  inspected,  he  shall  forfeit  and  pay  one  '^^  ^^• 
hundred  dollars. 

16.  If  any  person  shall  forge  or  counterfeit  the  stamp,  note,  Foi.;ory  of 

or  receipt  of  any  inspector  of  tobacco,  or  shall  offer  for  sale  or '^J!™,'';- jjlfp^^.r 
payment,  or  demand  of  any  inspector,  tobacco  on  any  such  "I't.'haeoo.— 

K.  S.  c.  59, s.  16. 


344  INSPECTIONS.  [Chap.  60. 

forged  note  or  receipt,  knowing  it  to  be  forged,  or  shall  pro- 
duce to  an  inspector  as  aforesaid  any  forged  certificate,  know- 
ing the  same  to  be  forged,  or  shall  cause  to  be  exported  any 
hogshead  or  cask  of  tobacco  stamped  with  a  forged  or  coun- 
terfeit stamp,   knowing  the   same,   or  shall  take  any  staves, 
plank,  or  heading  out  of  any  hogshead  of  tobacco  stamped  by 
an  inspector  as  by  law  directed,  after  such  hogshead  shall  have 
been   delivered,   from  any  of  the  public   warehouses,  with  a 
fraudulent  intent ;  the   person   so  oti'ending  shall  be  deemed 
guilty  of  a  felony,  and  shall  be  publicly  whipped  not  exceed- 
ing thirty-nine  lashes,  and  be  imprisoned  not  less  than  six 
months. 
Manner  of  pro-      17.  If- any  inspector's  note  shall  be  lost  or  destroyed,  the 
note'isfost.— k!  owner  on  making  oath  before  some  magistrate,  of  the  quantity 
S.  c.  59,  s.  16.   of  tobacco  mentioned  in  the  same,  and  that  the  note  is  lost  or 
destroyed,  and  that  he  is  the  lawful  owner  thereof,  and  entitled 
to  receive  the  tobacco  therein  mentioned,  may  obtain  a  certifi- 
cate from  the  justice  and  shall  thereby  be  entitled  to  receive 
the  tobacco  for  which  the  lost  note  was  given.     Provided,  that 
in  all  such  cases  the  owner  before  obtaining  another  note  for 
the  same,  shall  give  bond  with  approved  security  to  the  in- 
spector, who  gave  the  lost  or  destroyed  note,  or  his  successor, 
in  double  the  amount  of  the  value  of  the  tobacco,  to  indem- 
nify the  person,  who  may  thereafter  produce  the  original  note, 
the  value  by  him  paid  for  the  same ;  the  bond  taken  shall  be 
assignable  by  the  inspector  taking  the  same,  to  the  person  pro- 
ducing the  original  note,  who  may  maintain  an  action  of  debt 
thereupon,  and  such  assignment  shall  exonerate  the  inspector 
from  any  claim  or  demand  against  him  by  virtue  of  the  origi- 
nal note. 
rroceedings  by      jg.   When  any  person  demands  tobacco  of  any  inspector  on 
Ws' tobacco,  in-  his  uotc,  and  shall  have  cause  to  doubt  the  same  hath  received 
jured  since  in-  damage  after  inspection,  three  justices  of  the  county  (not  be- 
S^^c.'so"  sTir.   ing  merchants)  where  the  tobacco  is,  shall,  on  the  application 
of  the  person  demanding  the  tobacco,  repair  immediately  to 
the  warehouse,  and  there,  (being  first  sworn  by  some  other  jus- 
tice, who  is  empowered  to  administer  such  oath,)  well  and 
carefully  view  and  examine  the  tobacco  in  dispute,  and  give 
their  opinion,  whether  the  same  ought  to  pass  or  be  rejected, 
according  to  the  best  of  their  judgment  and  consciences,  with- 
out favor  or  affection :  and   if  in  their  judgment  it  is  good, 
sound,  and  fit  for  exportation,  the  tobacco  passed  shall  be  a 
sufficient  tender  to  the  party  demanding  on  the  note,  for  the 
same;  and  in  that  case  the  party,  calling  a  review,  siiall  pay 
the  justices  attending  eighty  cents  each  ;  but  if  they  reject  the 
tobacco,  the  inspector  shall  pay  the  said  justices,  and  shall  be 
liable  to  the  owner  of  the  note,  for  the  value  of  the  tobacco,  so 
rejected,  and  such  damages  as  he  may  sustain  by  lying  out  of 
the  same  from  the  time  of  demanding. 
Tnmcrsnpaud      19.  Any  number  of  persons,  not  exceeding  ten,  shall  be  ap- 
coopcrs  ap-       pointed  by  the  court  of  the  county,  where  there  may  be  an 


Chap.  60.]  inspections.  345 

inspection  of  tobacco  established,  to  turn  up  and  cooper  to-  pointed.— R.  s. 
bacco,  who   shall   hold  their  appointments  during  good    be-  '^-  °^'  ^-  ■'''■ 
havior. 

20.  The  inspectors  shall  be  judges  of  the  behavior  of  the  Inspectors  to 
turners  up  ;  and  if,  in  their  opinion,  the  turners  up  are  deficient  [he  m'i'beh'a"'' 
in  their  duty,  the  inspectors  shall  report  them  to  the  court ;  vior  of  turners 
and  if  they  shall  be  found  guilty  of  the  charge  alleged,  the  "P" 

court  shall  remove  them,  and  appoint  others.     Provided,  that 
any  person  bringing  tobacco  to  any  of  the  said  inspectors,  may  Owners  may 
turn  up,  pick,  prize,  and  cooper  his  own  tobacco,  and  have  free  [[Jeir^oiVf '^,'' 
access  to  any  of  the  prizes  erected  by  the  county  for  the  pur — K.  s.  c.  oV 
pose  of  prizing  the  same.     And  if  any  dispute  should  arise  ^-  ■'^• 
between  the  persons  bringing  tobacco  to  any  warehouse,  the 
right  of  preference  to  the  prizes  shall  be  determined  by  the  in- 
spectors. 

21.  The  county  court,  where  a  public  inspection  of  tobacco  Pickers  of  to- 
is  established,  shall  appoint  two  persons  sidlled  in  tobacco  to  er-VTi?'" 
be  picivers :  and  the  court  may   appoint  one   of  the  pickers  59^  s.  20. ' 

to  act  in  the  room  of  either  of  the  inspectors,  at  any  time  when 
such  inspector  may  be  incapable  of  attending,  who  shall  take 
the  oath  of  inspectors  ;  and  the  pickers  may  be  called  on  to 
give  a  casting  vote,  should  the  inspectors  disagree  in  the  in- 
spection of  any  tobacco ;  and  when  attending  in  lieu  of  in- 
spectors, may  receive  the  allowance  of  inspectors.  Provided, 
that  the  picker  by  whose  voice  any  tobacco  shall  be  con- 
demned, shall  not  be  allowed  to  have  the  picking  thereof,  and 
that  when  the  picker  is  so  appointed  by  the  court,  he  shall 
have  the  power  of  inspector,  in  case  of  inability  of  any  in- 
spector, until  the  next  county  court,  or  untU  the  inspector  can 
be  present.  Provided,  nevertheless,  that  upon  complaint  made 
against  any  picker,  the  court  where  such  complaint  is  lodged 
shall  inquire  into  the  nature  thereof;  and  if  it  shall  appear  that 
such  picker  hath  been  guilty  of  any  misbehavior  in  the  execu- 
tion of  his  duty,  the  court  shall  remove  him,  and  appoint  an- 
other in  his  stead. 

22.  No  inspector  shall,  directly,  or  indirectly,  buy,  or  receive  ^0  inspector  to 
by  way  of  barter,  loan,  or  exchange,  any  tobacco  whatsoever,  r!s.'c.'69';s?2I 
(payments  for  his  own  rents  excepted,)  under  the  penalty  of 
forfeiting  his  office. 

23.  The  justices  of  any  county   court,    a    majority    being  ^A'arehouses 
present,  may,  at  the  expense  of  their  county,  purchase  or  rent  "eSed'^J^R's'"^ 
ground,  build  or  rent  warehouses,  provide  scales  and  weights,  c^ots.  22.' 
and  other  matters  incident  to  a  tobacco  inspection,  and  allow 

such  salaries  to  the  inspectors  as  they  shall  judge  proper,  to  be 
paid  out  of  the  money  assessed  for  county  charges;  and  also 
shall  order  and  limit  the  time  for  the  attendance  of  the  inspec- 
tors at  their  respective  warehouses. 

24.  If  any   warehouse,  at  any  of  the  tobacco  inspections,  When  ^vnre- 
shall  happen  to  be  burned  and  tobacco  therein  destroyed,  no  !'"""^  }'"""i 

i.  1      11    1  II  ^  "^  .       inspector  not 

inspector  shall  be  sued  by  reason  of  any  notes  or  receipts  by  r.nbie,  &c.— R. 
him  given  for  tobacco  so  burned.  ^-  "=•  ^^>  *•  23- 


I 


346  INSPECTIONS.  [Chap.  60. 

W:irehouso  25.    The  justices  in  each  county  shall,  from  time  to  time, 

^^c— R°s''c*'"^'  regulate  what  shall  be  paid  as  warehouse  rent  for  each  hogs- 

B9%.  24. '  '      head  of  tobacco  ;  and  shall  appoint  some  tit  person  to  receive 

the  moneys,  who  shall  be  accountable  to  them  at  all  times  for 

the  appropriation   of  the  same,   by  action   of  debt;  and  the 

inspector's  books  shall  be  proof  as  to  the  number  of  hogsheads 

received. 

Warehouses,         26.    The  justices  shall,  as  occasion  may  require,  appropriate 

I'^S  o^w'T-'asi  any  of  the  remaining  part  of  the  aforesaid  moneys  in  repairing 

or  rebuilding  their  warehouses. 
Rules  of  pri-         27.    The  rules  and  regulations  aforesaid  shall  obtain  with 
housel-R.  S.  respect  to  warehouses    built  by  persons  on  their  own  lands, 
c.  59,s'.26.'    '  and  at  which  a  public  inspection  has  been  established,  as  to 

the  warehouse  rent  for  each  hogshead  of  tobacco. 
Inspectors  of        28.    The  county  court  of  Cumberland,'  at  the  first  court  after 
Fa'^etteviiie  —  ^'^^  ^^^^  ^^^  °^  February  one  thousand  eight  hundred  and  fifty- 
1842;  c^ri.t  1.  five  and  every  two  years  thereafter,  shall  appoint  one  or  more 
inspectors  of  tobacco  ;  and  no  person  shall  inspect  tobacco  in 
the  town  of  Fayetteville  unless  so  appointed. 
To  designate         29.    Such  inspectors   shall   designate   four  qualities  of  to- 
^i™i''jf^^j^^-7  bacco,  to    be  known    as    follows:  —  first,    second,    and   third 
''^    ''    '  qualities,  and  refused  or  unmerchantable;  and  they  shall  mark 
it  according  to  the  quality,  and  give  notes,  designating  tlie 
same. 
To  take  for  3o_    T^g  inspectors  in   Fayetteville   shall  take  from  each 

from  each  "^  break  not  less  than  four  nor  more  than  six  hands,  or  lugs  of 
cTi'^'b""*^"    tobacco,  and  deliver  one  half  to  the  owner  or  consignee,  and 
'  ^'  ■        retain   the   other   half,  marked  according  to  the  quality,  and 
keep  the  same  for  the  inspection  of  any  person  wlu)  may  wish 
to  examine  it,  until  the  tobacco  is  shipped  or  sold. 
Inspector  of  31.    No  inspector  of  flour  or  his  deputies  shall,  directly  or 

tadeTuiour.  indirectly,  trade  in  flour,  bread,  or  other  articles  made  of  flour, 
— R.  S.  C.59,  under  the  penalty  of  two  hundred  dollars  ;  and  every  inspector 
^'  ^''  so  offending  and  thereof  convicted,  shall  be  disabled  from  act- 

ing in  his  oflice ;  and  no  inspector  of  flour  shall,  directly  or 
indirectly,  purchase   any  flour  by  him  condemned;  nor   any 
other  flour,  than  for  his  own  use,  under  the  penalty  of  seven 
dollars  for  every  barrel  by  him  purchased. 
Degrees  of  32.    The  several  degrees  of  fiour  shall  be  distinguished  as 

to^l'^s-  imt,  follows,  namely,  family,  superfine,  fine,  and  cross  middling ; 
c.'ia's.s.'i.     '  and  inspectors  of  flour  shall  conform  their  inspection,  as  near 
as  may  be,  to  the  inspection  observed  and  in  use  in  the  adja- 
cent States. 
Barrel  of  flour       33.    Each  barrel  of  flour,  exposed  to  sale  in  or  exported 
JToundfnir     from  the  State,  by  land  or  water,  shall  contain  one  hundred 
and    ninety-six   pounds;    and    each  half  barrel,    ninety-eight 
pounds   of  net  flour,  well  ground,  bolted,   and  packed,   mer- 
chantable and  of  due  fineness,  without  any  mixture  of  coarse 
flour,  or  flour  of  any  other  grain  than  wheat;  and  every  barrel 
shall  be   made   of  good   seasoned  wood,  tightened  with  ten 
hoops,  sufficiently  nailed  with  flour  nails  in  each  chine-hoop. 


Chap.  60.]  inspections.  347 

and  three  nails  in  each  upper  bilge  hoop ;  and  the  dimensions 
shall  be  as  follows,  namely,  the  stave  shall   be  twenty-seven 
inches  in  length,  and  the  head  seventeen  and  one  half  inches 
in  diameter;  and  the   half  barrel  shall  be  of  the  following  di- 
mensions, namely,  the  staves  twenty-three  inches   in  length, 
and  the  head  twelve  and  one   half  inches  in  diameter:  and 
every  miller  or  manufacturer  of  flour  for  sale  or  exportation  What  flour  to 
shall  provide  and  keep  a  distinguishing  mark  or  brand,  con-  {ion— r"^s"c 
taining  the  initials  of  his  Christian  name,  and  his  surname  at59,  s.  29. 
length,  with   which  he   shall  brand   every  cask  of  flour,  and 
mark  thereon  the  net  and  tare  weight,  before  the  same  shall 
be  removed  from  the  place  where  it  was  bolted;  and  every 
miller  or  manufacturer  shall  receive  the  sum  of  ten  cents  for 
bolting,  packing,  and  nailing  every  barrel  of  flour  bolted,  and 
that  only. 

34.  Every  miller  or  manufacturer  of  flour,  not  complying  JnXr'"V"nu- 
with  the  provisions  of  the  preceding  section,  shall  pay  two  factnrei- or  sel- 
doUars  for  every  cask  of  flour  not  hooped,  marked,  branded,  fo,4Jo|'nll'p"|. 
and  nailed  as  aforesaid,  to  be  recovered  from  the  miller,  or  visions.— K.  S. 
from  the  person  who  shall  bring  such  flour  to  any  of  the  places  "■  ^^'  ^-  ^"^ 
aforesaid  for  sale  ;  and  incase  said  penalty  should  be  recovered 

from  the  person  bringing  such  flour  for  sale,  he  may  recover 
the  same  from  the  miller  or  bolter  from  whom  he  purchased  or 
received  the  same.  Provided,  that  he  gave  notice  to  the  miller 
or  bolter  that  he  intended  to  carry  the  same  to  one  of  the 
places  aforesaid  for  sale  or  exportation,  and  that  he  requested 
said  miller  or  bolter  to  secure  and  brand  the  barrels.  And 
every  miller  or  manufacturer,  putting  into  any  cask  a  less 
quantity  than  herein  directed,  shall  forfeit  and  pay  for  the  de- 
ficiency of  each  pound  the  sura  of  ten  cents. 

35.  The  inspector,  upon  his  suspicion,  or  at  the  request  of  ^^^^'^^Jj°^g^fj,;j, 
the  purchaser,  shall  unpack  any  cask  of  flour ;  and  if  there  cases  unpack 
shall  be  a  less  quantity  than  above  directed,  the  miller,  bolter,  g°59'"^3\'.  ' 
or  seller  shall  pay  the  charges  of  unpacking  and  repacking, 

besides  the  penalties  aforesaid ;  but  otherwise,  they  shall  be 
paid  by  the  inspector,  or  by  the  purchaser,  if  the  trial  be  made 
at  his  request. 

36.  When  any  person  shall  sell  a  barrel  of  flour,  not  con- Se'ior  of  bar- 
taining  the  full  quantity,  the  purchaser,  unless  there  shall  be  quantity,  iia- 
a  special  contract  to  the  contrary,  shall  be  allowed  to  recover  ''''=i  ^^,n~q^ 
the  value  of  the  deficiency  in  an  action  on  the  case  for  money  '  "  '  "  " 
had  and  received. 

37.  Every  inspector  shall  inspect  and  try  each  cask  brought  P"*'^?  °*^  """'"i 
to  him  to  be  inspected,  by  boring  through  the  cask  from  one— r.  s.  c.  su, 
head,  with   an  instrument  not   exceeding   half  an  inch  in  di- ^-  ^|.-~\''^-' 
ameter  and  equal  in  length  with  a  barrel  of  flour,  to  be  by  him    '      '  "" 
provided  for  the  purpose  ;  and  if  he  shall  judge  that  the  same 

is  well  packed  and  merchantable,  he  shall  plug  up  the  hole 
and  brand  the  cask  in  the  quarter,  with  the  name  of  the  place 
in  which  he  is  inspector,  with  a  public  brand  to  be  by  him 
provided  ;  and  shall  also  brand  and  mark  the  degree  of  fine- 


348  INSPECTIONS.  [Chap.  60. 

iiess  which   he   shall  determine  the  same  to  be  of;  for  which 
trouble  the  inspector  shall  receive  from  the  owner  five  cents 
for  every  barrel :  and  no  inspector  shall  pass  any  flour  which 
shall  be    unmerchantable,    but    shall    cause   the    same    to   be 
marked  on  the  bilge,  "condemned;"  or  secure  it  for  further 
examination,  if  required :  and  the  inspector  may  receive  from 
the  owner  the  same  fees  as  if  it  had  been  passed  ;  and  every 
inspector  shall,  if  required,   give  the   owner   of  the  Hour  in- 
spected and  branded,  a  certificate  of  the  same,  and  shall  keep 
a  record   or   book   of  inspection    of  all  flour   inspected    and 
branded  as  aforesaid,  setting  forth  the  owner  of  the  flour  and 
miller's  name,  with  the  quality  of  each  cask. 
Owner  Jissatis-      3g,    Whenever  any  person  may  think  himself  aggrieved  by 
taia'a  rei-xain- the  decision  of  any  inspector  of  flour,  the  owner  or  his  agent 
ination.  — R.     may  secure  it  for  further  examination,  which  shall  be  made 
"  '    '  '    '   within  sixty  days  by  applying  to  a  justice,  who  shall  issue  a 
warrant  directed  to  three   indifferent  persons,   well  skilled  in 
the  manufacture  of  flour,  one  of  whom  shall  be  named  by  the 
owner  of  the  flour,  one  by  the  inspector,  and  the  third  by  the 
magistrate  ;  which  persons,  having  first  taken  the  oath  directed 
for  inspectors,  shall  carefully  examine  the  flour;  and  if  they, 
or  any  two  of  them,  shall  differ  from  the  inspector  as  to  the 
quality,  the  inspector  shall  brand  and  mark  the  same  accord- 
ing to  their  judgment,  and  he  moreover  shall  pay  all  costs  at- 
tending the  examination  ;  but  if  they  shall  be  of  opinion  that 
the  judgment  of  the  inspector  is  correct,  the  owner  shall  pay 
costs. 
^^™"jfl°"^  f^-      39.    No  person  shall  export,  or  lade  on  board  of  any  ship  or 
not  pafsed'by    vessel  for  exportation   out  of  the    State,   any  barrel  of  flour 
inspector.  —  R.  marked  "  condemned  "   by  an  inspector,  or  any  barrel  of  flour 
■   '     '  '     '    not  inspected  or  branded  as  aforesaid,  on  pain  of  forfeiting  ten 
dollars  for  every  barrel  of  flour  exported,  or  put  on  board  of 
any  ship  or  vessel  for  exportation. 
On  shipper  re-      40.    If  any  master,  owner,  or  commander  of  a  ship,  vessel, 
spectednour.    boat,  or  craft  shall  receive  any  barrel  of  flour  on  board  for  ex- 
portation or  transportation  from  one  town  or  port,  being  a  place 
of  inspection,  to  another,  which  is  not  inspected  and  branded 
as  herein  directed,  he  shall  forfeit  and  pay  live  dollars  for  every 
Proviso.  — R.    barrel  so  received.     Provided,  that  the  provisions  of  this  sec- 
— 1844 'c.  49    ^'"^'^  shall  not  extend  to  the  transportation  of  flour  from  Fay- 
s.  3.     '  ctteville  to  Wilmington. 

Flournot  liable      41.    A^^y  cask  of  flour,  which  has  been  inspected  and  branded 
InGOdays!— k!  ^t  any  one  place  of  inspection   in  the   State,  shall  not  be  sub- 
S.  c.  59,  s.  37.  ject  to  reexamination  and  inspection  in  another,  unless,  after 
such  inspection,  it  shall  have  remained  for  sixty  clays  before  it 
is  exported  ;  and  the  certificate  of  the  inspector  shall  be  conclu- 
sive evidence  of  the  time  when  the  Hour  was  inspected. 
Cask  not  con-       42.    No  inspector  of  Hour  shall  condemn  any  flour  cask  for 
tain" cases" i'i''^'^"  ""^  being  precisely  of  the  dimensions  required  by  this  chapter: 
it  contain  loo   Provided,  such  cask  shall  come  within   one  half  inch  of  the 
S?c"oy"l3s.  length  of  the  stave,  and  one  half  inch  in  the  diameter  of  tiie 


CriAP.  60.]  INSPECTIONS.  .349 

liond,  of  the  measurement  required,  and  sliall  contain  one  hun- 
dred and  ninety-six  pounds  of  flour. 

43.  If  any  person  shall   pack  for  sale  Hour  or  meal  of  any  PcnnUy  for 
kind    whatever   in    a    casic,    which    has    been    inspected    find  f,"^^  ,'',',i:,*,i','.j'" 
branded  with  the  name   of  a   miller,  he  shall  forfeit  and  pay  c:isk.  —  i!.  s. 
twenty  dollars  for  every  barrel,  one  half  to  the  informer,  the  other  "'  ^^'  '^^  ^^' 
half  to  the  miller,  and  be  further  liable  to  the  action   of  the 

party  aggrieved. 

44.  If  any  person  shall  alter  tlie  mark  branded  on  any  cask  For  altering  in- 
of  flour  by  an  insp^tor ;  or  shall  marlc  or  brand  any  cask  of  bra|;j''&c. _ k. 
flour  which  has  not  been  inspected,  with  any  mark  or  brand  S-  '^-  ^'J,  s.  40. 
similar  to,  or  in  imitation  of  any  inspector's  mark  or  brand  ; 

or  after  an  inspector  shall  have  passed  any  cask  of  flour  as 
merchantable,  shall  pack  into  said  cask  any  other  flour ;  or 
after  any  cask  of  flour  shall  be  branded  "  condemned"  shall 
unpack  and  repack  the  same  in  other  casks  for  exportation  ; 
he  shall  forfeit  and  pay  seven  dollars  for  every  cask,  and  be 
deemed  to  be  guilty  of  a  misdemeanor. 

45.  Every  inspector  of  flour,  failing  to  perform  the  duties  On  inspectors 
herein  mentioned,  shall  forfeit  and  pay  ten  dollars  for  every  ty.°-lV.°i.  c' 
offence.  59,  s.  4i. 

46.  Any  person  may  sell  flour  in  the  town  of  Fayetteville,  Uninspected 
either  in  casks  or  otherwise,  without  submitting  the  same  to  Fayetteville.— 
inspection.  E.s.c.59,s.42. 

47.  Wherever  the  term  barrel  or  cask  of  flour  may  be  used  "^"r'^lfl"'"  „ 
in  this  chapter,  it  shall  be  construed  to  include  a  half-barrel,  to  include  balt- 
unless  the  same  be  repugnant  to  the  enactment.  barrel. 

■  48.    Every  inspector  of  beef,   pork,  rice,  ilaxseed,  fish,  tar.  Inspectors  of 
pitch,  and  turpentine,  shall  constantly  attend  at  the  places  for  offpe,'"^,'j'[ie'l'fOT 
which  he  shall  be  appointed,  and  shall  provide  an  iron  to  brand  misconduct.— 
any  of  the  said  commodities,  bearing  the  name  of  the  inspec-  ^^s.  c.  59,  s. 
tor  and  his  place  of  residence,  and  shall  find  laborers  equally 
with  the  owners  to  assist  in  weighing  the  several  commodities 
he   shall  inspect  and  weigh ;  and   also  shall  find  and  provide 
proper  steelyards  or  scales  of  the  lawful  standard  ;  and  if  any 
inspector  shall  neglect  his  duty,  or  brand  or  stamp  any  of  the 
commodities  contrary  to  this  chapter,  or  brand  any  empty  bar- 
rels, or  lend  his  brand  to  any  person,  he  shall  forfeit  and  pay 
for   every  such  offence,  twenty  dollars  ;  and  for  branding  any 
empty  barrel,  or  lending  his  brand,  two  hundred  dollars  ;  and 
every  other  person  that  shall  brand,  or  procure  to  be  branded, 
any  cask  or  barrel,  otherwise  than  by  the  inspector  or  by  his  as- 
sistant, shall  forfeit  and  pay  for  every  offence  the  same  fines 
and  penalties  as  inspectors  are  by  this  section  liable  to  pay  for 
similar  breaches  of  duty  or  misbehavior. 

49.    All  beef  or  pork,  packed  for  sale  or  exportation,  shall  ?'"'7fctea ^hot- 
be  put  in  good  and  sufficient  new,  white  oak,  turkey  or  water —u.  s.  c.'59,  s. 
oak  casks,   which  shall  not  contain,   each   barrel,  more  than  ^*- 
twenty-eight  gallons,  wine  measvu'e,  and  fifteen  gallons,  each 
half-barrel ;  and  such  cask  shall  be  made  of  timber,  seasoned 
at  least  six  months  after  the  riving,  the  staves  not  less  than 
30 


350  INSPECTIONS.  [Chap.  GO. 

half  an  inch  thick  when  wrought,  the  head  not  less  than  three 
quarters  of  an  inch  thick,  and  well  dowcUed,  tAvelve  good  sub- 
stantial hoops  on  each  cask,  and  the  whole  to  be  tight,  lit  to 
hold  pickle,  and  made  in  a  workmanlike  manner ;  and  each 
barrel  shall  contain  at  least  two  hundred  pounds  of  good, 
•  sound,  and  clean  merchantable  meat,  well  salted  and  cured, 

with  at  least  half  a  bushel  of  salt  to  each  barrel,  and  nailed 
and  packed,  with  no  more  than  two  heads,  and  without  any 
boar's  tlesh,  in  any  barrel  of  pork,  and  without  any  heads  or 
bull's  flesh,  or  more  than  two  shins  in  any  barrel  of  beef ;  and 
each  half-barrel  shall  contain  one  hundred  pounds  of  salted 
meat,  and  if  beef,  not  more  than  one  shin,  and  if  pork,  not 
more  than  one  head. 
^°ected!-E?s.  °0-  ^^^  ^^^S'^  l^''*^'  exported  in  casks,  shall  be  inspected  re- 
c.  59,  s. 45.  specting  the  quality  thereof,  for  which  the  inspectors  shall  be 
entitled  to  fees,  similar  to  those  allowed  for  pork,  respect  be- 
ing had  to  the  size  of  the  cask  ;  and  hog's  fat  or  lard  shall 
not  be  exported  unless  in  cypress,  white  oak,  or  juniper  casks, 
and  inspected,  under  the  penalties  inflicted  for  exporting  unin- 
spected pork. 
Eice.how  in-         g]^_    Everv  cask  of  rice,  intended  for  sale  or  exportation,  shall 

spected. — K.  S.  „.■;  I'ni  i-  ir  i 

c.  59,  s.  46.  be  nlled  with  sound  and  well  cleaned  rice  ;  and  alter  the  same 
has  been  inspected  and  found  good  and  merchantable,  it  shall 
be  branded  as  aforesaid,  and  a  certificate  thereof  given  to  the 
owner,  bearing  date,  in  words  at  length,  the  same  day  such 
commodity  was  inspected  and  passed. 

f'Ste^"— r's       ^^'    ^^^  ^®^'  exported  from  the   State,  shall  be  packed  in 

c.  59,  S.4-.  good  and  sufficient  barrels,  and  shall  be  inspected  by  an  in- 
spector of  the  county  where  the  same  may  be  saved,  at  the 
time  of  shipping  the  same  ;  each  barrel  shah  be  at  least  twenty- 
nine  inches  in  length,  and  the  head  at  least  seventeen  inches 
in  diameter,  and  shall  contain  thirty  gallons,  be  made  in  a 
workmanlike  manner,  and  be  full  of  good  sound  fish,  with  a 
sufficient  quantity  of  salt ;  and  when  the  barrels  of  fish  shall 
be  of  this  description,  they  shall  be  deemed  merchantable  on 
the  inspector's  marking,  brandiiig,  ikc. ;  otherwise,  it  shall  not 
be  lawful  to  export  any  fish  in  barrels  from  the  State.  And  if 
any  person  shall  sell  or  ofler  to  sell,  within  the  State,  any  fish 
in  barrels  less  than  the  size  aforesaid,  he  shall  forfeit  and  |)ay 
two  dollars  for  each  barrel,  to  the  use  of  the  prosecutor. 

Barrels  of  tur-        53^    Everv  baiTcl   of  soft  turpentine  or  tar  shall  be  of  the 

pentme  and  tar         .  .<  .    ' 

of  what  weight,  Weight  01  two  hundred  and  eighty  pounds  gross;  every  barrel 
and  of  pitch,     ^f  \is,xA  turpentine  of  the  weisfht  of  two  hundred   and  forty 

&c.,ofwhat  I  1       i-^    -1    1       1     n  .    ■       ,\  ■  i      . 

size,  &c.  pounds   gross;  every  barrel  oi    pitch   shall  contain   thu'ty-two 

gallons;  and  every  barrel  of  turpentine,  tar,  or  pitch  shall  be 
free  of  any  fraudulent  mixture,  and  put  in  good  and  sufficient 
casks  made  of  good  seasoned  staves,  three  quarters  of  an  inch 
thick,  and  not  exceeding  five  inches  wide,  and  not  less  tlian 
thirty  nor  more  ihan  Ihirty-two  inches  long,  and  heads  not 
less  than  one  nor  more  than  one  inch  and  a  half  thick,  and 
secured  with  twelve  good  hoops,  except  hard  turpentine,  which 


Chap.  60.]  inspections.  351 

shall  be  secured  with  ten  good  hoops,  and  the  joint  of  the  head 
shall  be  placed   perpendicularly  to  the  bung;  and  if  turpen- 
tine, tar,  or  pitch   shall  be  fraudulently  mixed,  the  same  shall 
be  condemned  by  the  inspector,  and  delivered  to  the  owner  on 
demand.     And  forasmuch  as  it  is  difficult  in  warm  and  rainy 
weather,  to  separate  tar  from  water,  it  is  hereby  declared,  that  ^^,^^^^  _^_^  ^ 
water  shall  not  be  accounted  a  fraudulent  mixture  in  tar ;  but  in  fraudulent 
such  case  the  barrel  shall  not  be  branded  by  the  inspector  until  mixture  in  tar. 
the  same  is  as  free  from  water  as  it  can  be  made.     And  foras- 
much as  it  is  difficult  for  the  makers  of  turpentrne  and  tar  so 
to  regulate  the  size  of  their  barrels  that  every  barrel  shall  weigh  j^-^^^^,^^^^ 
the  number  of  pounds  required  by  this  section,  it  is  provided,  where' barrels 
that  the  inspector  shall  make  out  two  fair  bills  of  thesame,  j^^sh^^je^-^^^ 
the  one  for  the  seller  and  the  other  for  the  buyer,  in  which  he  ard  quantity.— 
shall  designate  the  quantity  and  quality  of  the  same,  making  fg  .^fg/e^'; 
a  proportional   allowance  to  the  seller,  when  the  barrel  shall  57^  s.  i;  ms, 
weigh  more  than  the  standard  number  of  pounds  established  «2_^*'  ^^°'*'*'' 
by  this  section,  and  the  same   allowance  to  the  buyer,  when 
the  barrel  shall  weigh  less. 

54.  Every  barrel  of  turpentine,  after  the  same   shall  be  in-  Turpentine 
spected,  weighed,  found  clean,  and  in  merchantable  order,  shall  Jj;^™,g,/_°  ''•' 
be  branded  or  marked  by  the  inspector  ;  the  soft  with  the  letter  Penalty  on  in- 

S.,  and  the  hard  with  the  letter  H.     And  if  any  inspector  shall  !^K.Tf"53"f: 
inspect  any  turpentine  or  tar,  contrary  to  the  directions  of  this  49.— 1844,  c. 
chapter,  or  shall  give  any  bill  contrary  to  the  same,  he  shall  f^  i^*^' <=•  "• 
forfeit  and  pay  fifty  dollars  for  each  offence. 

55.  Every  maker  of  tar,  pitch,  or  turpentine  shall  mark  or  Jiakers  of  tar, 
brand  each  barrel  with  the  initial  letters  of  his  name,  and  in  Pii^f^Sd" 
case  of  his  failure,  the  inspector  is  required  to  mark  the  same,  with  initials  of 
for  which  he  shall  receive  one  half  cent  per  barrel ;  which  fee  ^'p^^t'lJJ^to' 
shall  be  paid  by  the  person  paying  thfe  fees  of  inspection,  and  keep  a  book, 
by  him  may  be  charged  to  the  maker:  and  every  inspector  ^;^^ «^'Jf^;;^|^; 
shall  keep  a  book,  in  which  shall  be  fairly  entered  the  maker's  — R.  S.c.  59,3. 
name,   and  the  mark  of  every  barrel  of  beef,  pork,  rice,  tar,  ^jj"^  2.  '  °" 
pitch,  turpentine,  flour,  fish,  and  butter,  and  the  number  of 

barrels  inspected  of  the  same  mark,  the  merchant,  or  shipper's 
name  causing  the  same  to  be  inspected,  and  the  time  of  in- 
spection ;  and  shall  give  a  certificate  of  any  parcel  to  any  per- 
son requiring  the  same,  on  payment  of  ten  cents. 

56.  No  beef,  pork,  rice,  fish,  flour,  or  butter  shall  be  shipped  Beef,  &c^,  re- 
on  board  of  any  ship  or  vessel,  for  exportation,  after  the  ex- "o'i^l^porte j ;„ 
piration  of  sixty  days  from  the  time  the  same  was  inspected ;  ^']^j'^>'^-^,^  ^_. 
nor  any  tar,  pitch,  or  turpentine,  after  the  expiration  of  twenty  tu'l^en'ti'iie  in" 
days,  until  the  same  shall  have  been  again  inspected,  and  cer-  21)  g'^'j^,  5i 
tificates  granted  in  the  same  manner  as  if  such  commodities  "  '"'  '^' 
had  never  been  inspected;  and  every  person  offending  herein 

shall  pay  twenty  dollars  for  each  barrel  or  cask ;  and  the 
master  or  commander  of  such  ship  or  vessel  shall  be  liable  to 
the  same  penalty,  as  for  taking  on  board  any  of  the  said  com- 
modities without  being  branded. 

57.  No  cooper,  or  any  person  making  casks,  shall  expose  No  cooper  to 


352 


make  bairels 
foi-  sale,  but  as 
directed  by  this 
chapter.— K.  S. 
c.  59,  s.  52. 


Seller  or  ex- 
porter of  beef, 
&c.,  to  produce 
inspector's  ccr- 
tificafe,  &c. — 
E.S.c.  59,8.53. 


Penalty. 

Penalty  on 

masters  receiv- 
ing them  unin- 
spected.— R.  S. 
c.  59,  s.  54. 

Proviso  as  to 
Newbem. — 
1842,  c.  39. 


Shingles  of 
■what  size. — R, 
S.  c.  59,  s.  65. 


Lumber  how 
inspected. — R. 
S.  c.  59,  s.  56. 


Inspectors  of 
saw-mill  lum- 
ber near  Wil- 
mington ap- 
pointed.— 
183S,  c.  30,  s. 
1,2. 


INSPECTIONS.  [Chap.  60. 

for  sale  any  barrel  or  half-ban-el  for  tlie  holding  of  pork  or 
beef,  other  than  such  a.s  are  by  this  chapter  directed  to  be 
made  for  this  use,  under  the  penalty  of  two  dollars ;  and  every 
such  person,  before  lie  exposes  the  same  for  sale,  shall  set  his 
proper  brand  upon  them,  which  brand  shall  be  recorded  in  the 
olfice  of  the  county  court  where  he  shall  reside,  under  the  pen- 
alty of  twenty  dollars  for  every  neglect. 

58.  Every  seller  or  exporter  of  beef  or  other  commodity 
directed  to  be  inspected,  shall  produce  the  certificate  of  the  in- 
spector who  inspected  the  same,  and  make  oath,  if  required, 
before  a  justice  of  the  peace,  on  the  delivery  of  the  goods  sold 
or  exported,  that  the  several  commodities  by  him  to  be  sold  or 
exported,  are  the  same  that  were  inspected  and  passed,  and  do 
contain  the  full  quantity  mentioned  in  such  certificate,  with- 
out embezzlement,  to  his  knowledge ;  which  oath  the  justice 
shall  certify  on  the  back  of  the  certificate,  which  certificate  the 
seller  shall  deliver  to  the  buyer  of  such  commodities  ;  and  the 
person  exporting  them  shall  deliver  the  certificate  to  the 
master  of  the  ship  or  vessel  on  board  which  the  same  shall 
be  shipped  ;  and  if  the  seller  or  exporter  shall  refuse  to  make 
oath,  he  shall  for  every  such  offence  forfeit  and  pay  the  sum  of 
two  hundred  dollars. 

59.  No  master  or  commander  of  any  vessel  shall  take  on 
board  any  such  cask  or  barrel  or  other  inspectable  commodity 
as  aforesaid,  without  being  inspected  and  branded  as  required, 
under  the  penalty  of  two  hundred  dollars  for  each  offence. 

60.  Provided,  hoivever,  that  the  provisions  of  sections  fifty- 
five,  fifty-six,  fifty-seven,  fifty-eight,  and  fifty-nine  of  this  chap- 
ter shall  not  extend  to  the  town  of  Newbern,  so  far  as  relate 
to  tar,  pitch,  and  turpentine. 

61.  Shingles  shall  not  be  less  than  eighteen  inches  long, 
four  inches  broad,  and  five  eighths  of  an  inch  thick  ;  should 
they  be  larger,  they  shall  not  for  that  reason  be  considered  un- 
merchantable. 

62.  Boards  or  plank  shall  be  deemed  merchantable,  and 
passed  by  any  inspector,  that  are  free  from  splits  not  more  than 
twelve  inches  long,  have  no  edge  less  than  half  an  inch  thick, 
and  as  near  as  may  be  of  an  equal  thickness  at  each  end ;  and 
every  board,  plank,  piece  of  scantling,  or  other  square  timber, 
being  marked  with  the  number  of  more  superficial  feet  than 
are  contained  therein,  shall  be  forfeited  to  the  wardens  of  the 
county  for  the  use  of  the  poor.  Provided,  neverlhelcss,  that 
no  shingles,  boards,  plank,  or  scantling,  shall  be  inspected, 
unless  required  by  the  purchaser. 

63.  The  court  of  pleas  and  quarter-sessions  for  the  county 
of  New-llajiover,  a  majority  of  the  justices  being  present, 
shall,  at  the  session  at  which  they  appoint  inspectors  for  the 
town  of  Wilmington,  also  ap])oint  one  inspector  for  each  of 
the  saw-mills  in  the  vicinity  of  said  town,  for  the  inspection 
of  lumber  only  ;  and  if  any  such  insjiector  shall  fail,  when 
called  upon   by  the  proprietors  or  their  agents,  promptly  and 


Chap.  60.]  inspections.  353 

faithfully  to  discharge  his  duties,  he  shall,  for  every  failure, 
furleit  and  pay  to  the  party  aggrieved  fifty  dollars. 

(^i.    The  inspection  of  saw-mill  and  other  lumber  and  ton  i.umber  and 
timber  on  the  Cape  Fear  river,  and  at  the  several  ports  belong-  f™  timber 
ing  to  the  same,  shall  be  governed  by  the  following  rules,  to  on  Cape  Fear 
wit:  All   sound  boards   and  planks,  with   square   edges   find  ^'^''-rr^  I"  ^■ 
showing  heart  one  half  the  length,  and  as  near  an  equal  thick-  c.'sb,  s.  2,  3  • 
ness   at  both   ends   as  may  be,  and  split  not  more  than  one  |^J^' ''^  5^ !. 
third  of  the  length  ;  all  sound  scantling  with  square  edges,  and 
as  near  the  same  dimensions  at  both  ends  as  may  be ;  and  all 
sound  scantling  with  square  edges  two  thirds  of  their  length, 
and  the  bark  not  more  than  one  inch  wide,  and  as  near  the 
same  dimensions  as  may  be  at  both  ends ;  and  all  sound  ton 
timber   squaring  eleven    inches    and    upwards,    and    showing 
heart  one  half  the  length,  shall  be  merchantable  ;  and  all  saw- 
mill or  other  lumber  or  ton  timber,  not  being  of  such  descrip- 
tion, shall  be  refuse.     Any  inspector,  who  shall  inspect  saw-  Penalty  for  in- 
mill  lumber   by  any  rules   dift(?rent  from  those  prescribed  by  be^by  Stlrc™" 
this  section,  shall  forfeit  and  pay  the  sum  of  one  hundred  dol-  rules.— R.  s.  c. 
lars  for  every  otienee.  ^^'  *"  ^^' 

65.  All  steam  mill  lumber,  not  herein  otherwise  provided  Steam  mill 
for,  showing  heart  one  half  the  lengt.h,  shall  be  merchantable ;  |;;™^^f;,j''.!!'R. 
and  no  inspector,  having  a  stated  salary  from  the  proprietor  of  s.  c.  59,  s.  58. 
a  steam  mill,  shall  inspect  any  timber  brought  to  the  mill,  un- 
less by  consent  of  the  seller,  under  the  penalty  of  fifty  dollars. 

66.  All  ton  and  square  timber  and  saw-mill  lumber,  at  the  Saw-mill  lum- 
several  markets  and  mills  in  the   State,  shall  be  measured  by  [^"JiJ'gr^'oJr 
superficial    or   board    measure ;    and    any    person,    who    shall  measured, 
sell  such  timber  by  any  other  measure,  shall  pay  ten  dollars 

for  every  offence. 

67.  All    shingles,    boards,  plank,  and    scantling   inspected,  k'^.'"?J'''1p 
shall  be  culled,  and  the  refuse  separated  from  the  merchant-  be  euii'ed.— R. 
able,  except  there  be  an  agreement  otherwise  between  the  pur-  ^-  '^-  ^^'  ^-  ^*'- 
chaser  and  seller. 

68.  No  inspector  shall  purchase  any  cuUings,  or  other  arti- No  inspector  to 
cles  that  do  not  pass  inspection,  upon  pain  of  forfeiting  one  &J?1!;r"'s"c' 
hundred  dollars.  B9,  s.  62. 

69.  If  any  person,  who  is  not  a  legal  or  sworn  inspector  of  Misdemeanor, 
lumber  or  other  articles,  presume  to  act  as  such,  he  shall  forfeit  fo'tm^'as'^"in-'^ 
and  pay  one  hundred  dollars,  and  be  deemed  to  be  guilty  of  a  spector.— R.  s. 
misdemeanor.  "•  ^^'  '^^  ^^" 

70.  The  several  penalties  and  forfeitures  by  this  chapter  in-  Fines, &-c., how 
flicted,  unless  otherwise  provided,  shall  be  applied  one  half  to  cfsD^.  m. 
the  use  of  the  prosecutor,  and  the  other  half  to  the  county 
wherein  such  penalty  shall  be  incurred. 

71.  In  case  the  purchaser  and  seller  cannot  agree  as  to  the  Disimtes  about 
amount  to  be  allowed  for  extra  cooperage  and  defective  barrels  .age''&c?m'vvil- 
in  the  town  of  Wilmington,  any  inspector  of  naval  stores  and  ""'"gton,  bow 
provisions  in  the  town,  at  the  instance  of  either,  shall  estab- r!  ".'c/inVsT" 
lish  the  amount  to  be  allowed  therefor,  and  such  estimate  shall  *'°'  li^-i-.^-  ■'O- 
be  conclusive  ;  and  if  such  inspector  refuse  to  make  the  esti- 

•so* 


354  INSPECTIONS.  [ClIAP.    60. 

• 

mate  when  called  on,  he  shall  forfeit  and  pay  twenty-five  dol- 
lars to  any  person  who  will  sue  for  the  same. 
Sale  of  fire-  72.    All  fii-ewood  sold  in  incorporated  towns  shall  be  sold  by 

tTbe  bvcorr'  ^^^^  ^°^^^  '^"'^  "°*  otherwise;  and  each  cord  shall  contain  eight 
-Efs.'c^M,'  feet  in  length,  four  feet  in  height,  and  four  feet  in  breadth;  and 
''■""■  shall  be  corded  by  the  seller  under  the  penalty  of  two  dollars 

for  each  oftt?nce,  to  the  use  of  the  informer. 
Inspectors  of        73.    The  court  of  pleas  and  quarter-sessions  for  the  county 
wood  for  New-  ^f  Craven  may   appoint  one  or  more  inspectors  of  firewood 
mXh-iX'''  for  the  town  of  Newbern,  who  shall  reside  therein  and  inspect 
all  such  wood  as  may  be  carried  to  the  town  for  sale ;  and  be- 
fore entering  upon  their  duties,  they  shall  take  the  oaths  and 
give  the  bonds  required  of  other  inspectors,  and  shall  receive, 
for  inspecting  each  cord  of  wood,  four  cents,  to  be  paid  by  the 
purchaser. 
Of  provisions        74.    The  court  of  pleas  and  quarter-sessions,  a  majority  of 
"ofnted^bv  aT  ^^^^  justices  being  present,  may  appoint  for  their  county  an  in- 
^oiinty.-isTsf  spector  of  provisions  and  forage,  who  shall  hold  his  ollice  for 
c.  43,  s.  1.        ^j^g  ^gj,j^^  Qf  £yg  years  after  his  appointment. 
Duty  of  such        75.    Such  inspector,  when  any  article  of  provision  or  forage  ' 
iSisT'iil     is  imported  from  any  place  out  of  the  State,  such  as  beef,  pork, 
2;  1850,  c.'ri,   fish.  Hour    made  of"  wheat,  buckwheat,  or  rye,  (said  articles 
'•^■*-  being  in  barrels,  half-barrels,  or  kegs);  butter  by  the  firkin; 

cheese  by  the  box ;  hay  or  fodder  pressed  in  bales  or  bundles; 
or  hogsheads  of  bacon  ;  shall  be  compelled,  when  such  articles 
are  oflered  for  sale,  to  inspect,  examine,  and  brand  them 
according  to  such  rules  and  regulations  as  may  be  established 
by  the  court  of  pleas  and  quarter-sessions.  Provided,  however, 
that  when  any  of  said  articles  shall  have  been  before  inspected 
by  any  inspector  of  the  State,  they  shall  not  be  subject  to  re- 
inspection. 
Shall  give  76.    The  said  inspector  shall  enter  into  bond  in  the  sum  of 

^°"'^-  five  hundred  dollars  payable  to  the  State  of  North  Carolina, 

conditioned  for  the  faithful  performance  of  the  duties  of  his 
office,  which  bond  the  court  shall  take ;  and  he  shall  be  cnti- 
Fees.-i848,  c.  ^j^j  ^^  g^^^^.j^  ^^^^^  ^^  ^^^^  1^^  pi-gscribcd  by  the  court. 
Penalty  for  77.    If   any  pcrson  shall  sell  any  article  of  forage  or  pro- 

selling  fomge,  visions  aforesaid,  without  the  same  having  been  inspected, 
S!-is6o7c!'''  contrary  to  the  true  intent  and  meaning  of  this  chapter,  he 
^*'S-2-  shall,  for  every  ollehce,  forfeit  and  pay  one  hundred  dollars.  _ 

May  appoint  78.  Any  such  inspector,  whenever  the  business  may  require 
itfTiVf,  3  it'  "^^^y  appoint  a  deputy,  who  shall  take  an  oath  of  office,  and 
'  '  '  '  '  for  his  oificial  duty  and  penalties  incurred  by  him,  the  inspec- 
tor shall  be  liable. 
Fees,  by  whom  79.  The  fees  of  inspectors  shall  be  paid  by  the  purchaser  or 
C*^''''  exporter  of  the  articles  inspected,  and  if  any  inspector  shall 

Sm-R.s!' receive  any  greater  fees  than  arc  by  law  allowed,  he  shall  for- 
c.  69,  s.  D«,  67.  fgit  and  pay  ten  doUars  for  every  oll'ence  to  any  person  suing 
for  the  same. 


Chap.  61.] 


INTERNAL   IMPROVEMENT. 


355 


CHAPTER   61. 


INTERNAL   IMPROVEMENT. 


Section 

1.  Board   of  internal  improvements  in- 

corporated. 

2.  Sessions  of  board,  and  p.ay  of  members 

and  secretary. 

3.  Board  may  make  rnles  and  by-laws. 

4.  To  keep  record  of  proceedings,   and 

report  to  Assembly. 

5.  Its  fund  deposited  in  banks. 

6.  Treasurer  to  keep  accounts  of  board. 

Board  to  examine  them  yearly. 
Clerk  to  aid  treasm-er.  His  com- 
pensation. 

7.  Duty  of  board  in  making  contracts. 

8.  State  to  be  stockholder  in  companies, 

when. 

9.  Railroad   and   other   companies,  may 

enter  on  lauds  to  build  their  works, 
&c. 

10.  Proceedings  to  assess  damages.   Com- 

missioners appointed. 

11.  Infants,  &c.,  how  notified. 

12.  A  day  for  commissioners  to  meet,  ap- 

pointed by  court.  One  may  adjourn 
from  day  to  day. 

13.  Owners  to  have  five  days  notice  of 

meeting. 

14.  Commissioners  sworn.    Their  oath. 

15.  To  meet  and  assess  damages.     Slay 

administer  oaths. 

16.  Damages,  how  assessed. 

17.  Report  of  their  proceedings  made  and 

subscribed.     Form  of  report. 

18.  Returned  to  court;  proceedings  there- 

upon. 

19.  Appeal  allowed. 


Section 

20.  On  confirmation  of  report  and  pay- 

ment of  damages,  company  to  have 
fee. 

21.  Dwelling-houses,  &c.,  not  to  be  con- 

demned. 

22.  Company,  may  t.ike   materials   from 

adjoining  land. 

23.  Who  to  value  them. 

24.  Proceedings  to  have  them  valued. 

25.  Justice  to  preside  at  trial  and  render 

judgment. 

26.  Appeal  allowed. 

27.  Width  of   land  condemned  for  rail- 

roads. 

28.  For  plank-roads,  canals,  and  turupikes. 

29.  Quantity  of  land  allowed  to  be  con- 

demned for  depots,  &c. 

30.  Railroad,  &c.,  crossing  other  roads, 

not   to    obstruct    them. 

31.  Company  may  .turn  roads,  &c. 

32.  Damages  allowed  owners   on  whose 

land  roads  are  turned. 

33.  New  road  made  good  as  former  one. 

34.  Incorporated  companies  to  furnish  en- 

gineering bureau  with  maps,  &c.,  of 
improvements. 

35.  Railroad  and  other  companies,  to  keep 

account  of  produce  carried.     To  re- 
port to  governor. 

36.  Commissioners  and  freeholders  paid. 

Costs  paid  by  company,  except,  &c. 

37.  No  railroad,  plank-road,  &c.,  to  be 

established,  but  by  law.      Penalty 
and  misdemeanor  therefor. 

38.  Board  to  appoint  officers  to  represent 

the  State. 


rated.— K.  S. 
I,  s.  3.— R. 
,  61,  s.  2. 


1.    The  president  and  directors  of  the  board  of  internal  im-  Board  of  inter" 
provements  shall  consist  of  the  governor   of  the   State,  who  ™ent™'in°corpo- 
shall,  ex  officio,  be  president  thereof,  and  of  two  commissioners  rat 
to  be  appointed  biennially  by  the  governor,  with  the  advice  of  g 
the  council  of  State  ;  any  two   of  whom  shall  constitute  a 
board  for  the  transaction  of  business  ;  and  in  case  of  vacancies 
occurring  in  the  board,  the  same   shall  be   filled  by  the  other 
members.     The  governor  and  said  members  shall  be  a  corpo- 
rate body,  under  the  name   and   style  of  "  The  President  and 
Directors  of  the  Board  of  Internal  Lnprovements,"  and  sliall 
have  all  the  rights,  powers,  and   privileges   of  a   cor|)oralion 
which  may  be  necessary  to  enable  it  to  discharge  the  duties 
imposed  on  it  and  no  more. 


i.i 


356 


INTERNAL  IMPROVEMENT. 


[Chap.  61 


Sessions  of 
board,  nnJ  pay 
ofmembei'siind 
sccretiirv. — R. 
S.  c.  60,"  s.  4.— 
K.  S.  c.  61,  S.3. 


Board  may 
make  rules  and 
by-laws. — R. 
S.  c.  60,  s.  5. 


To  keep  record 
of  proceedings, 
and  report  to 
Assembly. —  R. 
S.  e.  60,  s.  9. 


Its  fund  de- 
posited in 
bunks. — R.  S. 
c.  61,  s.  5. 


Public  treas- 
urer to  keep 
accounts  of 
board. 

Board  to  ex- 
amine them 
yearly. 


Clerk  to  aid 
treasurer. 
His  compensa- 
tion.— R.  S.  c. 
60,  s.  8.— R.  S. 
c.  fil,  s.  4. 
Duty  of  board 
in  making  con- 
tracts.— R.  S. 
c.  GO,  s.  6. 


State  to  be 
stockholder  in 
companies  to 
the  amount  a<I- 
vanced. — R.  S. 
c.  60,  8.  10. 


2.  The  board  may  hold  their  sessions  whenever  and  wher- 
ever the  governor  may  direct;  rnay  appoint  a  secretary  to  re- 
cord their  proceedings,  who  shall  receive  three  dollars  for  each 
day  the  board  shall  be  in  session ;  and  the  members  shall 
receive,  each,  three  dollars  per  day,  and  their  travelling  ex- 
penses, for  the  time  they  may  be  employed  in  the  public 
service. 

3.  The  board  may  make  such  rules  for  the  regulation  of 
their  proceedings,  and  all  necessary  by-laws,  rules,  and  regula- 
tions for  the  better  ordering  of  the  conduct  of  their  officers, 
agents,  and  servants,  as  to  them  shall  seem  expedient,  not 
inconsistent  with  the  laws  of  the  State. 

4.  The  board  shall  keep  a  fair  and  true  record  of  all  their 
proceedings,  which  shall,  at  all  times,  be  open  to  the  inspec- 
tion of  the  members  of  the  General  Assembly  and  others 
interested  therein.  They  shall  report  to  the  General  Assem- 
bly, at  the  commencement  of  every  session,  the  exact  state  of 
the  fund,  the  progress,  condition,  and  net  income  of  all  the 
public  works  under  their  charge ;  the  surveys,  plans,  and  esti- 
mated expense  of  such  new  works  as  they  may  recommend  to 
the  patronage  of  the  General  Assembly,  together  with  such 
other  important  information  as  they  may  be  able  to  collect 
concerning  the  objects  committed  to  their  trust. 

5.  All  the  moneys  which  may  be  appropriated  to  the  fund 
for  internal  improvement,  unless  otherwise  ordered,  shall  be 
deposited  in  the  banks  of  the  State,  to  the  credit  of  the  treas- 
m-er,  subject  to  the  orders  of  the  board,  certified  by  the  secre- 
tary, and  countersigned  by  the  president, 

6.  The  treasurer  shall  keep  an  account  of  all  disburse- 
ments, and  shall  render  an  account  thereof  to  the  General 
Assembly  when  he  makes  his  biennial  report  of  the  ordinary 
revenue.  Once  in  every  year  the  board  shall  appoint  a  com- 
mittee of  their  body  to  examine  the  accounts  of  disbursements 
made  during  the  year,  and  compare  the  same  with  the  treas- 
urer's books  and  the  certificates  authorizing  the  payment  of 
money.  And  the  treasurer  may  employ  a  clerk  at  three  dol- 
lars per  day  for  the  time  he  may  be  engaged  in  making  such 
accounts.  Provided,  liowever,  that  his  compensation  shall  not 
exceed  five  hundred  dollars  a  year. 

7.  Whenever  the  General  Assembly  shall  direct  any  public 
improvement,  the  board  shall  let  the  same  out  by  contract,  and 
take  from  the  contractor  a  bond  with  suJiicicnt  security,  pay- 
able to  the  State  of  North  Carolina  in  dnnljic  the  sum  paid  or 
contracted  to  be  paid,  with  the  condition  that  he  will  faithfully 
perform  his  contract,  according  to  the  plans  or  specifications 
agreed  on. 

8.  Whenever  an  ap])roprip,tion  shall  be  made  by  the  State 
to  any  work  of  internal  im|)rovement,  conducted  by  a  corpora- 
tion, the  State  sliali  be  considered,  unless  otherwise  directed, 
a  stockholder  in  such  corporation,  and  shall  have  as  many 
shares  as  may  correspond  with  the  amount  of  the  money  ap- 


Chap.  G1.]  internal  improvement.  357 

propriated ;  and  the  acceptance  of  such  money  shall  be  deemed 
to  be  a  consent  of  the  corporation  to  the  terms  herein  ex- 
pressed. 

9.  Every  railroad,  plank-road,  tram-road,  tmuipike,  and  canal  Kailmid  and 
company,  for  the  pm-pose  of  constructing  their  road  or  canal,  pni,ics  m;iv  en- 
may  at  any  time   enter  upon  the  lands  through  which  tliey  J^'''  ™  '■"'.'''*  'o 
may  desire  to  conduct  their  road  or  canal,  and  lay  out  the  works,  Se- 
same as  they  may  desire ;  and  they  may  also  enter  on  such  i*"^.  <^-y2.s-i' 
contiguous   land    along  the  route   as   may   be  necessary  for 

depots,  warehouses,  engine-sheds,  workshops,  w&ter-stations, 
toll-houses,  and  other  buildings  necessary  for  the  accommoda- 
tion of  their  officers,  servants,  and  agents,  horses,  mules,  and 
other  cattle,  and  for  the  protection  of  their  property :  and  shall 
pay  to  the  proprietors  of  the  land,  so  entered  on,  such  sum  as 
may  be  agreed  on  between  them. 

10.  If  such  corporation  cannot  agree  with  the  owner  of  the  Proceedings  to 
land  which  is  entered  on,  or  is  desired  by  the  corporation  for  ages^^ 

the  purposes  aforesaid,  in  the  price  to  be  paid  for  the  same, 
then  either  the  company  or  the  owner,  five  days  previous  no- 
tice thereof  being  given  to  the  other  party,  may  apply  by  peti- 
tion to  the  county  or  superior  court  of  the  county,  in  which 
the  land  or  some  part  thereof  may  be  situate,  and  llie  court 
shall  appoint  five  disinterested  and  impartial  freeholders  to  Commissioners 
assess  the  damages  to  the  owner,  for  the  occupation  and  use  "PP^'^'^d. 
of  the  land  aforesaid. 

11.  If  any  owner  of  the  land  shall  be  an  infant  or  person  Infants,  Src, 
non  compos,  notice  shall  be  given  to  the  guardian  or  commit-  ^°^^  ™''  '^  ' 
tee ;  and  if  any  owner  resides  beyond  the  liinits  of  the   State, 

or  cannot  be  found,  he  may  be  notified  as  in  the  manner 
and  according  to  the  course  of  the  court  in  other  cases  of  pe- 
tition. 

12.  The  court  shall  name  a  day  and  place  for  the  meeting  Aday  forcom- 
of  the  commissioners,  of  whom  three  may  act  in  the  absence  mee\'°appoint;- 
of  the  others  ;  and  any  one  of  them,  when  a  majority  shall  not  e.i  by  court, 
meet  on  the  day  appointed,  may  adjourn  from  time  to  time,  jo[J^n"trom  day 
until  the  business  shall  be  done.  to  day. 

13.  The  owners  of  the  land  proposed  to  be  condemned  shall  Ownerstohave 
be  notified  by  the  sherifl:"of  the  time  and  place  appointed  for  Jf  ine'etino-.— 
the  commissioners   to   meet,   at  least  five  days    before   such  1^52,  c.  92,  s.  3. 
meeting. 

14.  The  commissioners,  before  entering  on  their  business,  Comm'rs 
shall  be  sworn  by  a  justice  of  the  peace  of  the  county  in  which  xuc'ir  oath, 
the  petition  is  filed,  that  they  will  impartially  and  justly,  to 

the  best  of  their  ability,  ascertain  the  damages  which  will  be 
sustained  by  each  owner  of  land,  which  may  be  condemned  to 
the  use  of  the  company,  and  that  they  will  truly  certify  their 
proceedings  thereupon  to  the  court. 

15.  The  conunissioners  shall  assemble  on  the  land  proposed  Tn  meet  and 
to  be  condemned,  and  after  viewing  the   same  and  hearing  ."^gs^"" '""" 
such  proper  evidence  as  the  parties  may  offer,  they  shall  assess  May  adminis- 
the  damages  ;  and  they  may  administer  oaths  to  any  who  may  "  *"' 
give  evidence. 


358 


INTERNAL   IMPROVEMENT. 


[Chap.  61. 


Damages,  how 


Report  of  their 
proceedings, 
made  and  sub- 
scribed. 
Form  of  report. 


Returned  to 
court. 

Proceedings 
thereupon. 


Appeal  al- 
lowed.— 1852, 
c.  92,  s.  4. 
On  confiiTna- 
tion  of  report 
and  payment 
of  dam.^ges, 
company  to 
have  fee. 
Dwelling- 
houses,  &o., 
not  to  be  con- 
demned.— 
1862,0.92,3.1. 
Company  m.ay 
take  materiaU 
from  adjacent 
land. 


Who  to  value 
them. 


16.  In  assessing  the  damage.?,  they  shall  consider  the  pro- 
prietor of  the  land  as  being  the  owner  of  the  whole  fee-simple 
interest  therein ;  and  shall  take  into  their  consideration  the 
quality  and  quantity  of  the  land  condemned :  the  additional 
fencing  that  will  be  required  thereby,  and  all  other  inconven- 
iences which  will  result  to  the  proprietor  from  the  condemna- 
tion thereof;  and  also  all  the  advantages  which  will  probably 
accrue  to  him  from  the  establishment  of  the  proposed  work. 

17.  When  the  commissioners  shall  have  assessed  the  dam- 
ages, they  shall  forthwith  make  and  subscribe  a  written  report 
of  their  proceedings,  in  substance  as  follows.  We, 
commissioners,  appointed  by  the  court  to  assess  the  damages 
that  have  been  and  will  be  sustained  by  ,  the  owner 
of  certain  land  lying  in  the  county  of                 ,  which  the 

company  proposes  to  condemn  for  its  use,  do  hereby  cer- 
tify that  we  met  on  the  day  of  ,  (or  the  day  to  which 
we  were  regularly  adjourned,)  and  having  first  been  duly 
sworn,  we  visited  the  premises  of  the  owner,  and  after  taking 
into  full  consideration  the  quantity  and  quality  of  the  land 
aforesaid,  the  additional  fencing  likely  to  be  occasioned  by  the 
works  of  the  company,  and  all  other  inconveniences 
likely  to  result  to  the  owner ;  and  also  all  advantages  which 
will  probably  accrue  to  him  from  the  use  of  the  land  and  the 
establishment  of  the  proposed  work,  we  have  estimated  and 
do  assess  the  damages  aforesaid  at  the  sura  of 
Given  under  our  hands  the             day  of  ,  A.D. 

18.  The  report  of  the  commissioners  shall  "be  returned  to 
the  next  court,  and  unless  good  cause  be  shown  on  exception 
taken  thereto,  the  same  shall  be  confirmed  and  recorded,  and 
judgment  shall  be  rendered  accordingly ;  and  if  the  report  be 
set  aside  other  commissioners  shall  be  appointed. 

19.  From  the  judgment  of  the  court  in  all  such  cases  an 
appeal  shall  be  allowed,  under  like  rules  as  in  other  cases. 

20.  On  the  confirmation  of  the  report,  and  payment  to  the 
owner  or  into  the  office  of  the  court,  of  the  damages  assessed, 
the  land  assessed  and  condemned  shall  be  vested  in  the  com- 
pany in  fee-simple. 

21.  No  such  corporation  shall  be  allowed  to  have  con- 
demned to  its  use,  without  the  consent  of  the  owner,  his  dwel- 
ling-house, yard,  kitchen,  garden,  or  burial-ground. 

22.  For  the  purpose  olF  constructing  its  works  and  necessary 
appurtenances  thereto ;  or  of  repairing  them,  after  they  shall 
have  been  made;  or  of  enlarging,  or  otherwise  altering  them; 
the  company  may,  at  any  time,  enter  on  any  adjacent  lands, 
and  cut,  dig,  and  take  tlierefrom  any  wood,  stone,  gravel,  or 
earth,  whicli  may  be  deemed  necessary.  Provided,  however, 
that  they  shall  not,  without  the  consent  of  the  owner,  destroy 
or  injure  any  ornamental  or  fruit-trees. 

23.  If  for  the  value  of  the  damages  done  to  the  owner  by 
reason  of  the  acts  in  the  preceding  section  mentioned,  the 
parties  may  be  unable  to  agree,  the  same  shall  be  vallied  by 
any  three  freeholders  of  the  county. 


Chap.  61.]  internal  improvement.  359 

24.  Either  party,  for  that  purpose,  may  apply  to  any  justice  Procceilings  to 
of  the  peace  of  the  county,  wherein  the  damage  is  done,  who  v-uuld""™ 
shall  thereupon  summon  said  freeholders,  and  they  being  duly 

sworn  to  impartially  and  truly  assess  the  damage,  shall,  after 
hearing  such  proper  eftdence  as  may  be  laid  before  them,  re- 
port the  value  thereof  to  the  justice. 

25.  The  justice  shall  preside  at  the  trial  and  administer  all  Justice  to  pre- 
proper  oaths  to  the  freeholders  and  witnesses,  and  on  the  return  ^'n,i  rlndar' 
to  him  of  the  report,  he   shall  render  judgment  for  the  dam- judgmeut. 
ages  and  costs  against  the  company  and  issue  execution  there- 
for. 

26.  Either  party  may  appeal  from   such  judgment  as  in  Appeal  al- 
other  cases,  and  under  the  same  rules.  iowad. 

27.  The  width  of  the  land  condemned  for  any  railroad,  ^^'nith  of  land 
shall  not  be  less  than  eighty  feet,  nor  more  than  one  hundred,  rZrZ°!^  ^°' 
except  where  the  road  may  run  tin-ough  a  town,  when  it  may 

be  of  less  width  :  or  where  there  may  be  deep  cuts  or  high 
embankments,  when  it  may  be  of  gi-eater  width. 

28.  No  greater  width  of  land  than  sixty  feet  shall  be  con-  For  piank- 
demned  for  the  use  of  any  plank-road,  tram-road,  canal,  or  a^Td'mraplkes. 
turnpike.  — 1852,  c.  92. 

29.  No  greater  quantity  of  land  than  two  acres,  contiguous  Quantity  con- 
to  any  railroad,  plank-road,  tram-road,  turnpike,  or  canal  shall  poS,°&c.'^°'"^''' 
be  condemned  at  one  place  for  a  depot  or  station. 

30.  Whenever,  in  their  construction,  the  works  of  any  of  Kailroati,  &o., 
said  corporations  shall  cross  established  roads  or  ways,  the  ^iadtnofto" 
corporation  shall  so  construct  its  works  as  not  to  impede  the  obstruct  tliem. 
passage   or  transportation   of  persons   or  property   along  the 

same. 

31.  In  order  to  prevent  the  frequent  crossing  of  such  roads  Company  may 
or  ways ;  or  in  cases  in  which  it  may  be  necessary  to  occupy  '"™  '''"^''''  '^'^• 
the  same,  the  corporation  may  change  the  roads  and  ways  so 

as  to  avoid  such  crossing  and  occupation,  and  to  such  points 
as  may  be  deemed  expedient. 

32.  For  any  injury  done  to  the  lands  of  persons  by  taking  Damagea  ai- 
them  vxnder  the  preceding  section,  the  value  thereof  shall  be  o^i'^'^'hoseT d 
assessed  in  like  manner  as  is  provided  for  assessing  damages  roads  a"re 
done  by  entering  on  adjacent  lands  for  the  purpose  of  repairs.    '"'■"'^''• 

33.  Before  any  part  of  an  established  road  or  way  shall  be  Newroadmade 
impeded  by  any  of  said  corporations,  the  new  road  or  way  ^"""^  *^  ^"™^'" 
shall  be  prepared  and  made   equally  good  with  the  portion  ™^" 
proposed  to   be  discontinued;    and   then  the   same   shall   be 

deemed  a  part  of  the  original  road  or  way,  and  shall  be  kept 
up  and  repaired  as  before  the  change. 

34.  Every  company,  incorporated  for  the  jmrpose  of  im-  Incorporated 
proving  the  internal  condition  of  the  State,  by  railroad,  planJc-  fZlTcnii- 
road,  tram-road,  turnpike,  canal,  or  other  means,  shall  furnish  neering  buT-n.an 
to  the  bureau  of  engineers,  a  correct  map  or  profile  of  the  con-  ''nmprov^.'^''"' 
teiBplated  improvements,  drawn  to  a  uniform  horizontal  scale  meats. —  1850, 
of  four  hundred  feet  to  one  inch.  And  all  such  charts  and  ^2%76}^^^'  "' 
documents   of  a  like   character,  as   may   be  furnished  to  the 


360 


Railronil  and 
other  com- 
panies to  keep 
account  of  pro- 
duce carried. 

To  report  to 


Commissioners 
and  freehold- 
ers paid. 
Costs  paid  by- 
company,  ex- 
cept in  certain 
cases. — 1852, 
c.  92,  s.  3,  5. 


No  raih'oad, 
plank-road, 
&c.,  to  be  es- 
tablished but 
bv  law. 


Penalty  and 
misdemeanor 
therefor. 


Board  to  ap- 
point oflicers  to 
represent  the 
State. 


JUSTICES    OF   THE   PEACE.  [Ch.\P.    62. 

State,  shall  be  deposited  for  safe-keeping  in  said  bureau,  un- 
der the  charge  of  the  State  Librarian,  or  State  Engineer,  in 
case  there  sliould  be  such  an  officer. 

35.  The  president  and  directors  of  canal,  railroad,  plank- 
road,  and  turnpilve  companies,  whether  wholly  or  partly  in  this 
State,  are  requested  to  keep  an  account  of  all  the  products  of 
this  State  intended  for  sale  abroad,  by  them  transported  out 
of  the  State,  or  to  any  shipping  port  therein ;  and  report  the 
same  to  the  governor  at  each  session  of  the  General  As- 
sembly. 

36.  Each  commissioner  and  freeholder  attending  for  the 
purpose  of  assessing  damages  to  the  owner  of  land,  shall  be 
entitled  to  one  dollar  a  day  while  engaged  in  the  business; 
and  the  same,  with  all  other  costs  of  the  case,  shall  be  paid 
by  the  corporation,  unless  when  the  petition  of  the  owner 
shall  be  dismissed,  when  he  shall  pay  the  costs  ;  or  unless  in 
the  case  of  exception  taken  to  the  report,  or  of  appeal,  when 
the  court  may  adjiidge  by  whom,  and  in  what  proportion,  the 
costs  shall  be  paid. 

37.  If  any  person  or  corporation,  not  being  expressly  au- 
thorized thereto,  shall  make  or  establish  any  canal,  turnpike, 
tram-road,  railroad,  or  plank-road,  with  the  intent  that  the 
same  shall  be  used  to  transport  passengers  other  than  sucli 
person,  or  the  members  of  such  corporation ;  or  to  transport 
any  productions,  fabrics,  or  manufactures  other  than  their  own, 
the  person  or  corporation  so  offending,  and  using  the  same  for 
any  such  purpose,  shall  forfeit  and  pay  fifty  dollars  for  every 
person  and  article  of  produce  so  transported ;  and  shall,  more- 
over, be  deemed  guilty  of  a  misdemeanor,  they  and  all  persons 
aiding  therein,  and  shall  be  indicted  therefor  in  the  superior 
court. 

38.  The  president  and  directors  of  the  board  of  internal 
improvements  shall  appoint,  on  behalf  of  the  State,  all  such 
officers  or  agents,  as,  by  any  act  incorporating  a  company  for 
the  purpose  of  internal  improvement,  are  allowed  to  represent 
the  stock  or  other  interests  which  the  State  may  have  in  such 
company. 


CHAPTER   62. 


JUSTICES    OF   THE   PEACE. 


Section 

1.  Justice  within  what   time  to  qualify. 

Penalty  for  acting,  without  qualify- 
ing. 

2.  When  a  candidate,  not  to  vote,  SiC,  in 

the  election. 
8.  Removed  out  of  county  twelve  months, 
to  lose  his  ollice. 


Skction 

4.  I'ower  of,  in  his  county. 

5.  Not  to  .act  as  attorney  in  liis  county 

court,  nor  as  clerk,  sheriff,  &c.,  else 
to  vacate  Ills  office. 

6.  Jurisdiction  of,  in  civil  matters. 

7.  Warrants  from,  when  returnable.  Hail 

taken  by  oflicor,  if  rccjuired.     liail- 


Chap.  62.] 


JUSTICES    OF   THE   PEACE. 


361 


Section 

21.  Justice  mny  accept  office  umler  Uni- 
ted States. 

22.  Process  of,  not  to  abate  for  want  of 
form. 

23.  Appeal  from  liis  judf^ment  allowed  to 
superior  or  county  court,  by  one  or 
more. 

24.  Security  for  appeal,  how  given,  and 
proceeded  against. 

25.  Appeal  to  be  returned  by  justice  on 
or  before  second  day  of  term ;  wit- 
nesses summoned  by  him. 

26.  Persons  unprovided  at  trial  with  se- 
curity for  stay  or  appeal,  allowed 
ten  days  to  procure  it. 

27.  Persons  absent  because  of  sickness, 
&c.,  allowed  ten  days  for  stay  or  ap- 
peal. 

28.  Proceedings  of  justice  under  two  pre- 
ceding sections. 

29.  Execution  may  issue  forthwith. 

30.  Upon  security  given  for  stay  or  appeal, 
officer  to  return  execution  to  justice. 

31.  Justices  may  restrain  rioters  and  dis- 
turbers of  the  peace. 

32.  Duty  of  two  justices,  &c.,  in  suppress- 
ing unlawful  assemblies,  riots,  &c. 

33.  Special  duty  of  nearest  justices. 

34.  But  all  magistrates  to  aid. 

35.  On  malicious  warrants  for  petty  of- 
fences, &c.,  justice  may  order  pros- 
ecutor to  pay  costs. 

36.  Resignation   of  justices   delivered  to 
'  clerk  of  county  court. 

1.  Every  person  appointed  a  justice  of  the  peace,  shall, 
within  twelve  months  thereafter,  and  not  after  that  time  unless 
reappointed,  publicly  in  court  take  the  prescribed  oaths.  And 
if  any  person  shall  otherwise  presume  to  execute  the  office  of 
a  justice  of  the  peace,  he  shall  for  every  ofTence  forfeit  and  pay 
two  hundred  dollars,  and  be  deemed  to  be  guilty  of  a  misde- 
meanor. 

2.  No  justice  of  the  peace,  being  a  candidate  for  an  ofRee 
which  may  be  filled  by  the  court,  shall  vote  or  sit  on  the  bench 
at  the  election ;  and  if  he  do  so,  his  vote  shall  not  be  counted, 
and  he  shall  moreover  forfeit  and  pay  one  hundred  dollars. 

o.  When  any  justice  of  the  peace  shall  remove  out  of  the 
county,  and  shall  not  return  within  twelve  montlis  to  reside 
tiierein,  his  appointment  shall  be  void;  and  such  person  sliall 
not  act  as  a  justice  of  the  peace,  unless  reappointed,  under  a 
penalty  of  one  hundred  dollars  for  every  such  illegal  act. 

4.   Justices  of  the  peace,  within  their  respective  counties, 
shall  have  full  power  to  maintain,  keep,  and  preserve  the  ]ieace, 
solemnize    the   rites  of   matrimony,  and   issue    ail    necessary 
process  in  aid  of  their  jurisdiction. 
31 


Skction 

bond  deemed  assigned,  to  bo  return- 
ed. Olficer  not  taking  bond,  to  be 
special  bail. 

S.  Defendant  refusing  to  give  bail,  com- 
mitted. Warrants  when  tried,  and 
duty  of  officer  respecting  them. 

9.  Bail  deemed  special — proceedings  re- 
moved to  county  court,  and  bail  sub- 
jected there,  &o. 

10.  May  arrest  and  surrender  his  principal. 

11.  Execution  from  justice,  how  issued 

and  returned.  Hay  be  stayed  with 
security.     Security,  how  given. 

12.  Stay  not  allowed  in  suit  on  former 

judgment. 

13.  Justice  may  continue  a  trial. 

14.  Deposition  of  witness,  when  allowed 

to  be  read. 

15.  When  judgment  is  rendered  in  ab- 

sence of  party,  in  wliat  time  and 
how,  new  trial  obtained. 

16.  Execution  of  justice,  when  returnable, 

to  whom  issued,  against  what  prop- 
erty. 

17.  Levied   on  land,  returned  to  county 

court. 

18.  Justice   to  direct  officer  to  summon 

witnesses.  Penalty  on  witnesses 
not  attending. 

19.  Execution  against  one  removing  from 

tlie  county,  liow  proceeded  on. 

20.  Judgment  of  justice  may  be  removed 

to  anotlier  countv. 


-Justice  witln'n 
what  time  to 
qualify. 
Penalty  for  act- 
ing, witiiout 
qualifvin;. — K. 
S.  0.  G2,  s.  1. 


Wlicn  a  candi- 
date, not  to 
vote  in  elec- 
tion.—Pt.  S.  0. 
02,  s.  2. 

Kemoved  out  of 
county  twelve 
rnontlis,  to  lose 
ollice.— U.  S.  0. 
02,  s.  3. 


Power  of,  in  his 
county.— R.  S. 
c.  03,  s.  4. 


362  JUSTICES    OF   THE  PEACE.  [ClIAP.   62. 

Not  to  act  «8         5.    No  justice  of  the  peace  shall  practise  as  an  attorney  in 

coimtv' cou^t'^  the  court  of  pleas  and  quarter-sessions  of  the  county  for  which 

iiorascierU,    'he  is  a  justlce ;  nor  shall  he  be  appointed  or  act  as  clerk  or 

to  va«ife''hfs''*'  deputy  clerk  thereof,  or  as  sherifi"  or  deputy  sheritT,  constable  or 

oflicc— K.  S.     county   trustee,    or  jailer,   within    his    county.      And   if  any 

c.  02,  s.  u.        justice  shall  so  act  or  accept  any  such  appointment,  he  shall 

thereby  vacate  his  office  ;  and  if  he  shall  thereafter  act  as  a 

justice,  without  reappointment,  he  shall,  for  every  such  act, 

forfeit  and  pay  one  hundred  dollars. 

Jurisdiction  of       6.    All  debts  and  demands  due  on  bonds,  notes,  or  liquidated 

>*;^'^5  i";;";'' accounts  stated  in  writins?  and  si2;ned  by  the  jiarty  owing  the 

matters. — U.S.  ,      ,,  ,     ,  i  i     i    i  ^  i    i        '       i  i 

c.  62,  s.  G.—      same,  and  all  balances  due  on  such  debts  and  demands,  where 
1844,  c. 42,  s.  1.  ^j^g  principal  of  such  debt  or  demand,  or  balance  due  thereon, 
does  not  exceed  one  hundred  dollars,  though  the  principal  and 
interest  thereof  may  exceed  that  sum;  and  all  judgments  ren- 
dered on  such  debts  and  demands  wliere  the  principal  of  the 
judgment    may  not   exceed  one  hundred  dollars,  though  the 
principal,  interest,  and  costs  may  exceed  that  sum.     And  all 
debts    and  demands  of   sixty  dollars  and  under  due  on  any 
parol  agreement,  or  for  goods,  wares,  and  merchandise  sold  and 
delivered,  or  for  work  or  labor  done,  or  for  sjjecific  articles,  and 
all  balances  of  sixty  dollars  and  under  due  on  such  last-men- 
tioned debts  or  demands,  and  all  judgments  rendered  thereon, 
where  the  principal  of  the  judgment  may  not  exceed  sixty 
dollars,  though  the  principal,  interest,  and  costs  may  exceed 
that  sum ;  and  all  forfeitures  or  penalties,  not  exceeding  one 
hundred  dollars,  shall  be  cognizable  and  determinable  by  any 
one  justice  of  the  peace  out  of  court. 
Warrants  from,      7.    AH  warrants  issued  by  a  justice  of  the  peace  shall  be 
when  return-     ^^^^  returnable  on  or  before  thirty  days  from  the  date  thereof, 
Sundays  excepted,  and  not  after ;  and  when  issued  against  any 
person,    (executors,    administrators,    and    female    debtors    ex- 
cepted,) shall  command  the  sheriff,  constable,  or  other  officer, 
to  take  the  body  of  the  person  therein  mentioned  as  defend- 
ant, if  to  be  found  in  his  county,  to  answer  the  complaint  of 
the  plaintiff  before  some  justice  of  his  county ;  and  the  officer 
Bail  taken  by    -when  required  by  the  plaintiff,  shall  take  bond  with  sufficient 
quired.'  ''^'     security  of  the  party  arrested,  in  double  the  sum  for  which  he 
shall  be  held  in  arrest,  (which  sum  and  how  due  shall  be  ex- 
pressed in  the  waiTant,)  conditioned  for  his  appearance  at  a 
certain   time  and  place,  therein  to  be  specified,  before  some 
Bail-iiontl        justice  of  the  county  where  the  warrant  issued;  which  bond, 
deemed  assign-  without  any  Indorsement  to  that  effect,  shall  be  regarded  as 
timed-officCT  assigned  by  such  officer  to  the  plainliff  therein  named,  and 
not  taking        shall  bc  returned  with  the  warrant  and  liled  by  Ihe  justice  who 
''""liUii.-   shall  try  the  warrant  with  the  other  papers  in" the  suit;  and  in 
1!.  s.  c.  G2,s.7.  ease  the  officer  shall  fail  to  take  such  bond,  he  shall  be  held 
and  deemed  special  bail,   and  the   plaintiff  may   proceed    to 
judgment  against  him  according  to  the  rules  hereinafter  pre- 
scribed. 
Defendant,  re-       8.    When  an  officer  shall  serve  a  warrant  on  any  person  who 


Chap.  62.]  justices  of  the  peace.  363 

shall  refuse  to  give  bond  and  security  for  his  appearance  as  fnsinjc to  give 
aforesaid,  the  officer  shall  commit  such  person  to  the  jail  of '"'!'' '^'""'""' 
his  county,  in  order  that  he  may  have  him  forthcoming  at  the 
day  appointed  for  trial,  and  shall 'produce  his  prisoner  at  the 
trial;  and  all  warrants  shall  be  heard  or  determined  on  the  warrants, 
day  appointed  by  the  officer  serving  the  same,  which  shall  be  when trieri. and 
on  or  before  the  return  day  set  forth  in  the  warrant,  riniess  the  r"|fo"tiiV^" 
justice,  for  good  reasons,  shall  put  off  the  trial  to  some  other  them.— u.  8.  e. 
day  ;  the  officer  shall  notify  the  plaintiff  of  the  time  and  place  ;     '  ^'  ■"■ 
and  in  case  the  plaintiff"  shall  fail  to  attend  or  prosecute  his 
suit  on  the  day  appointed,  the  defendant  appearing  shall  be 
discharged.     Provided.,  that  when  the  officer  shall  have  com- 
mitted any  defendant  to  jail,  he  shall  give  immediate  notice 
thereof  to  some  justice  in  the  county,  who  shall  appoint  a  day 
for  the  trial,  and  notice  of  the    same    shall  be  given  to  the 
plaintiff  by  the  officer. 

9.  The  bail  in  civil  cases  taken  under  the  directions  of  this  Bail  deemed 
chapter,  shall  be  deemed  special   bail,  and  as  such  shall  be  special— pro- 
liable  to  the  recovery  of  the  plaintiff;  and  whenever  the  plain- raoved''tocoun- 
tiff  shall  desire  to  subject  the  bail,  he  shall  make  affidavit  to  l;!,;"""")^",.'',! 
that  effect  before  some  justice  of  the  peace,  who  shall  there- there,  &c.—R. 
upon,  by  written  order,  command  that  the  proceedings  be  re-  f;,"^;  ^W  ®*T 

J.  1    1  I  1         •  •  1  1  •         lo4i,  c.  31,  s.  3. 

turned  by  the  person  having  them  in  charge,  to  the  ensuing 
county  court,  where  on  motion  the  judgment  may  be  con- 
firmed, and  all  the  proceedings  shall  become  a  record  of  that 
court;  and  thereupon  the  same  course  of  proceeding  shall  be 
had  in  that  court  to  subject  the  bail,  as  if  the  case  had  been 
commenced,  tried,  and  determined  in  that  court. 

10.  Such  bail,  at  anytime  before  linal  judgment  against  May  arrest  and 
him,  may  arrest  the  body  of  his    principal,  and  secure    him  pr[noi™T— r. 
until  he  shall  have  an  opportunity  of  surrendering  him  in  dis-  S-  c.  62,  s.  lo. 
charge  of  himself;  which  surrender,  if  made  before  the  judg- 
ment be  confirmed  by  the  court,  as  provided  in  the  preceding 

section,  shall  be  made  to  the  officer  who  arrested  the  defend- 
ant, and  he  shall  receive  and  hold  the  body  in  his  custody  as 
if  bail  had  never  been  given ;  and  if  made  after  the  confirma- 
tion of  such  judgment,  the  same  shall  be  made  in  open 
court. 

11.  When  any  judgment  is  given  by  a  justice,  he  or  any  Execntionf.'m 
other   justice  may  award  execution    against   the    goods   and  .justice,  hnw  to 
chattels,  lands    and   tenements,  or   body,  of  the   party  cast ;  returned. 
which  process  shall  l^e  executed  and  returned  by  the  officer  to 

whom  the  same  may  be  directed,  according  to  the  command 

of  the  writ.     Prorided  a/irnys,  that  where  a  judgment  shall  May  be  stayed 

be  given  by  a  justice  of  the  peace  in  any  matter  whereof  he  hy giving  secu- 

may  have   jurisdiction,  (unless  otherwise  ordered,)   execution 

thereon  shall  be  stayed  in  the  following  manner,  namely,  for 

sums  not  exceeding  four  dollars,  twenty  days ;  for  sums  above 

four   dollars  and  not   exceeding   ten  dollars,  sixty  days  ;   for 

sums  above  ten  dollars  and  not  exceeding  twenty  dollars,  one 

hundred  and  twenty  days ;  and  for  sums  above  twenty  dollars, 


564 


JUSTICES    OF   THE   PEACE. 


[ClIAP.  62. 


Stay  not  allow- 
ed in  suit  on 
former  .iud<;- 


Justice  may,  on 
Ciiiise,  continue 
a  trial.— U.  S. 
c.  62,  s.  13. 


Deposition  of 
witness,  when 
allowed  to  be 


Security,  how  six  montlis.  And  for  the  payment  thereof  with  interest  and 
62  l?!!."  costs,  the  party  praying  such  stay  sliall  give  sufficient  security, 
and  the  acknowledgment  of  the  surety,  entered  by  the  justice 
and  signed  by  the  surety,  shall  be  sufficient  to  bind  him.  If 
the  judgment  shall  not  be  discharged  at  the  time  to  which  the 
execution  has  been  stayed,  then  any  justice  may  issue  execu- 
tion against  the  principal  and  surety,  or  either  of  them. 

12.  On  the  trial  of  a  warrant  issued  on  a  former  judgment, 
the  judgment  shall  be  evidence  of  the  debt,  subject  to  such 

•— I'- *'•<=•  payments   as  may  have  been  made;    and  if  judgment   pass 
'  "    '"  against  the  defendant,  he  shall  not  be  entitled  to  any  stay  of 

execution. 

13.  Any  justice,  before  whom  a  warrant  is  brought  for  trial, 
on  sufficient  excuse  shown  on  oath  by  the  plaintiff  or  defend- 
ant, or  his  agent,  may  from  time  to  time  continue  the  same  for 
trial.  But  such  continuance  shall  not  exceed  thirty  days,  and 
any  justice  may  try  the  case. 

14.  When  on  the  trial  of  a  civU  warrant,  the  testimony  of  a 
witness    not   resident  within    the    county  where  the  same  is 

read.— R.  s.  0.  pending,  is  required  by  either  party,  his  deposition  taken  by  a 
'  ■    ■  justice  of  the  county  where  the  witness  may  be,  upon  reason- 

able notice  to  the  adverse  party  of  the  time  and  place  of  tak- 
ing the  same,  shall  be  read  in  evidence ;  and  the  justice  may 
issue  a  summons  to  compel  the  attendance  of  the  witness. 
When  jndgm't  15.  Whenever  a  judgment  shall  be  given  by  a  justice  iu 
absencrof  par- ^1'"^  absence  of  the  plaintiff'  or  defendant,  whether  execution 
ty,  in  what  hath  been  issued  or  not,  on  application  of  such  absent  party, 
new  trial  mav  ^^^  f^gcnt,  or  attorney,  within  ten  days  after  the  date  of  said 
bo  obtained.—  judgment,  to  the  justice  who  awarded  the  same,  and  sufficient 
'*■  "■  cause  shown  on  oath  why  he  could  not  attend  on  the  day  of  trial, 
such  justice  shall  issue  his  order  to  the  plaintilT,  defendant,  or 
officer  (as  the  case  may  require)  in  possession  of  the  papers 
relative  to  the  suit,  to  forbear  any  further  proceedings  thereon, 
and  immediately  to  bring  the  same  before  him  or  some  other 
justice  for  reconsideration  ;  and  shall  issue  his  summons  di- 
rected to  some  proper  officer,  to  cause  the  parties,  with  their 
witnesses,  to  appear  before  him  or  some  other  justice,  at  such 
time  and  place,  not  exceeding  thirty  days,  as  he  may  think 
proper,  where  the  case  shall  undergo  a  fair  investigation,  and 
be  subject  to  the  same  proceedings  as  if  it  had  never  been 
acted  on ;  and  the  officer  shall  receive  for  executing  the  same, 
like  fees  as  for  summoning  witnesses,  to  be  taxed  against  the 
party  at  whose  instance  it  issued. 

16.  All  executions,  issued  by  a  justice  of  the  peace  against 
the  estate  of  any  person,  sliall  be  made  returnable  in  three 
months  from  llie  date  thereof,  and  shall  be  directed  to  the 
sheriff,  constable,  or  other  lawful  officer,  commanding  him, 
s.  c.  62,  s.  16.  that  of  the  goods  and  chattels  of  the  party  cast  he  make  the 
sums  of  money  therein  mentione4,  and  for  want  of  such 
goods  and  chattels  to  satisfy  said  execution,  that  he  levy  on 
the  lands   and  tenements   of  such  person,   and  make   return 


K.  S.  c. 


Execution  of 
justice,  when 
returnable,  to 
whom  i.fsucd, 
again.st  what 
property. — R. 


Chap.  62.]  justices  of  the  peace.  365 

thereof  to  the  justice  who  issued  the  same ;  and  the  officer  in 
his  retarii  shall  set  forth  on  the  execution  the  money  he  has 
made  of  the  goods  and  chattels,  and  what  lands  and  tene- 
ments he  has  levied  on,  where  situate,  on  what  watercourse, 
and  whose  land  it  adjoins. 

17.  Any  justice,  to  whom  a  levy  on  land  is  returned,  shall  Levica  on  land, 
return  the  execution,  with  all  other  papers  on  which  the  judg-  \'l^l.l  'Xm't'— 
ment  was  given,  to  the  next  county  court  to  be  held  for  his  R.  S.c.  C2,s.'i6. 
county ;  and  the  land  shall  by  order  of  the  court  be  sold  by 

the  sheriff  of  said  county,  or  so  much  thereof  as  shall  be 
sufficient  to  satisfy  the  judgment,  in  the  same  manner  as  real 
property  is  sold  under  writs  of  Jieri  facias,  or  venditioni  ex- 
ponas, issuing  upon  judgments  of  that  court ;  and  the  clerk  of 
the  court  shall,  in  a  well-bound  book  kept  for  that  purpose, 
record  all  the  papers  and  proceedings  had  before  the  justice. 

18.  Any  justice,  on  application  of  the  plaintiff  or  defendant.  Justice  to  di- 
shall  direct  the  sheriff,  constable,  or  other  officer,  by  an  order  summon  wU- 
in  writing  on  the  process,  to  summon  witnesses  to  appear  and  "ess. 

give  testimony  at  the  time  and  place  appointed  for  trial ;  and  Penalty  on  wit- 
each  witness  failing  to  appear  and  give  evidence  shall  forfeit  {Sng"— R.'s. 
and  pay  four  dollars  to  the   party  at  whose  instance  he  was  c.  62,  s.  17. 
summoned,  and  further  be  liable  to  him  for  all  damage  sus- 
tained by  non-attendance ;  and  the  fine    shall    be   recovered 
before  any  justice,  unless  the  witness  on  affidavit  or  otherwise, 
shall  show  sufficient  cause  to  the  contrary. 

19.  When  any  execution  shall  issue  to  a  sheriff,  constable.  Execution 

or  other  officer,  in   virtue  of  a  judgment  obtained  before  any  "g'^'!'^':  onere- 
justice,  and  the  defendant  shall  remove  to  any  other  county,  the  county  ,how 
and  such  officer  cannot  find  property  to  satisfy  the  execution,  E!R'|''e''62"'s 
he  shall  return  it  with  the  judgment  to  the  next  county  court;  18.  '  '  '   "' " 
and  the  plaintiff  shall  be  entitled  to  an  execution  for  the  whole 
or  any  part  of  the  judgment  which  remains  unpaid;  and  the 
clerk,  by  order  of  the  court,  shall  record  the  same  and  issue 
execution  to  any  other  county,  in  the  same  manner  as  if  the 
judgment  had  been  rendered  in  that  court. 

20.  Any  person  having  a  judgment  rendered  by  a  justice  Judgment  of 
of  the  peace,  may  procure  the  clexk  of  the  county  court  of  the  iTremo"7to 
county  in  which  judgment  was  obtained,  to  certify  under  the  another  coun- 
seal  of  court,  that  the  justice  who  gave  the  judgment  was,  at  the  2' 'is.''' '''  °'  '^^' 
rendition  thereof,  a  justice  of  said  county ;  on  which  judgment 

thus  certified,  any  justice  in  any  other  county  may  award  ex- 
ecution for  the  sums  therein  expressed. 

21.  Any  justice  of  the  peace,  may  accept  any  civil  office  or  Justice  mny 
appointment   of  profit    or   trust,  under  the    authority  of  the  undTu^'s!- 
United   States,  the  duties  of  which  shall  be  confined  to  the  R-  S.  c.  62,"s. 
State,  if  the  same  be  not  incompatible  with  his  said  office.         ^''" 

22.  No  process  issued  by  a  justice  of  the  peace  shall  be  set  Process  of,  not 
aside  for  the  want  of  form,  if  the  essential  matters  are  set  forth  k.  s^'.^u-^^sr 
therein.  21. 

23.  If  any  party  to  a  trial  before  a  justice  of  the  peace,  or  Apjienifroin 
any  one  or  more  persons   of  such   party,  shall  be  dissatisfied  iuV«xi™™np 

31* 


266  JUSTICES   OF    THE   PEACE.  [ChAP.    62. 

or  CO.  court,  with  the  judgment  given  therein,  he  may  appeal  to  the  next 
^y'|™'^°''^;term  of  tlie  superior  or  county  court,  at  his  option,  on  giving 
2:i.— iboo,  c.'jj  good  security  lor  prosecuting  the  appeal  with  etiect ;  and  the 
3-  judgment  against  such  as  do  not  appeal,  and  the  appeal  shall 

be  proceeded  on  in  like  manner  and  under  the  same  rules  and 
regulations,  as  appeals  in  like  cases  from  the  county  to  the 
superior  court. 
Security  for  24.    Where  appeals  shall  be  granted  from  the  judgment  of 

gfvC''^udpro-  a  justice,  the  acknowledgment  of  the  surety,   subscribed  by 
ceeded against,  jjj^^  jj,jj  attested  by  the  justice,  shall  be  sulTicient  to  bind  him 
-R.  S.  c.  62, 9.  ^^  ^j^.^^^  ^^  ^^^^^  perform  the  judgment  of  the  court ;  and  where 
judgment  shall   be  against  the  appellant,  the  same  shall  be 
entered  on  motion  against  the  surety ;  and    execution    shall 
issue   against  the  principal,  and   surety,  or  either  of  them  as 
the  appellee  may  choose. 
Appeal  return-      25_    When  any  justice  shall  grant  an  appeal,  he  shall  return 
beforeS"    the  same  on  or  before  the  second  day  of  the  term,  to  which  it 
day  of  term,      ^r^y  ijg  returnable  ;  and  on  application  of  either  party,  he  shall 
^oned  by  Wm"  issue  subpoBuas  directed  to  the   sheriff  or  other  officer  in  any 
E.S.  0.62,5.24.  county,  for  witnesses  to  appear  and  give  testimony  at  court. 
Persons  unpro-      26.    When  any  person,  against  whom  judgment  is  rendered 
vided  at  trial     j^y  ^  justice  of  the  pcacc,  shall  desire  to  appeal  therefrom  or 
for  st-ay^'r  ap-  stay  the  execution  thereof,  and  shall  be  unprovided  at  the  trial 
peal  allowed    ^.j^]^  [,jg  sureties,  the  justice,  on  affidavit  made  of  the  same, 
PjocuTiL-R.  shall  note  on  the  judgment  that  tlie  party  is  allowed  to  appeal 
S.c.  62,  s.  25.   Qj  g|.j^y  j-i^ig  execution  within  ten  days  thereafter  ;  and  the  party 
may  within  that  time,  before  such  justice  or  some  other,  have 
the  same  allowed  in  the  manner  already  provided. 
Or  absent  be-        27.    And  when  judgment  shall  be  rendered  by  any  justice 
c^iuseofsick-    Ij^  ^i,g  absence  of  a  party,  who   shall  desire  to  appeal  or  stay 
rowed  ton"       the  execution,  on  affidavit  made  before  said  justice,  (or  if  he 
days  fwst^v     ijg  (jgj^j  oj.  g^^  of  tije  couiity,  before  any  other  justice,)  within 
s' cl'oars.  23.'  ten  days  of  the  rendition  of  the  judgment,  that  he  was  pre- 
vented from  attending  the  trial  by  sickness,  mistaking  the  day 
of  trial,  or  other  sufficient  cause,  and  that  he  is  likely  to  be 
injured  by   such  judgment,  then  such  justice   may  grant  an 
appeal,  or  stay  of  execution,  on    the  same  terms  and  in  like 
manner,  as  if  such  appeal  or  stay  had  been  prayed  at  the  time 
of  rendering  judgment. 
Proceedings  of      28.    When  any  party  shall  be   entitled  under  cither  of  the 
iwo^precedh'g  two  preceding  sections  to  have  a  stay  or  appeal,  then   the  jus- 
sections.— K._    tice,  if  the  judgment  or  papers  be  not  in  his  own   hands,  shall 
S.  c.  62,  s. 25.  ^y  ^j^  written  command  to  the  officer  or  any  other  who  may 
have  them,  cause  thciu  to  be  returned  to  him,  to  the  end  that 
such  stay  may  be  entered,  or  such  appeal  be  allowed  :  and  in 
the  case  of  an  appeal,  the  judgment  with  such  other  papers 
and  documents  as  may  relate  thereto,  shall  be  returned  by  the 
justice  to  tiie  ne.xt  term  of  the  court  to  which  the  appeal  may 
"have  been  taken;  and  the  justice,  in  the   same  or  some  other 
written   order,  shall  comiuand  the  officer  forthwitii  to   notify 
the  adverse  party  of  the  appeal,  and  to  what  court  it  is  taken. 


Chap.  62.]  justices  of  the  peace.  367 

29.  Nothing  in  the  three  preceding  sections  contained  shall  Excci^Uon  may 
prevent  the  party  recovering  jndgment,  from  suing  out  execu- Hk^jj™,,.  ga^s; 
lion  at  any  time  before  the  same  is  stayed,  or  the  appeal  is  2g. 
granted. 

30.  If  execution  shall  issue  upon  any  judgment,  where  the  Vpon  security 
defendant  prayed  an  appeal  or  stay  of  execution  in  manner  sT^pe^u'offi- 
aforesaid,  before  the  ten  days  be  expired,  upon  security  bemg  cer  to^etum 
given  as  heretofore  directed,  the  same  shall  be  returned  to  the  •„^,i"^'™i;'.''s. 
justice  who  issued  it,  and  shall  not  be  acted  on  by  any  officer  ;  c  62,  s.  2;. 
and  the  officer,  or  other  person   having  the   execution,  due  no- 
tice being  given   him  in  writing  from  the  justice,  shall  deliver 

up  the  same  or  be  liable  to  the  action   of  the  party  aggi-ieved. 

31.  Every  justice  of  the  peace  within  his  county,  shall  have  Justices  to  ro- 
power  to  restrain  evil-doers,  rioters,  and  disturbers  of  the  pub-  |;'ij  dij,"°,.^ek 
lie  peace,  and  to  take  them  and  cause  them  to  be  imprisoned  ntthe  peace.— 
and   punished,  and  take   of  them  security  for  their  good  be-  ^g.  "  ""■  ^''  '' 
havior. 

32.  If  any  riot,  assembly,  or  rout  of  people  against  law  be  Duty  of  two 
made,  any  two  justices  of  the  peace  and  the  sheriff  shall  come  {[Jf  ^^if^^^-^ 
with  the   power  of  the   county  (if  need  be)  and  arrest  t'""^™' ^PPve^^'/'g 
and  the  same  justices  and  sherilf  shall   have  power  to  record  "embLgesTri- 
that  which  they  find  done  in  their  presence  against  law;   and  ots^^&c.-R.  S. 
if  such  offenders  be  departed  before  the  coming  of  the  justices  "■  ''^- '  ' 
and  sheriff,  then  the  same  justices  and   sheriff  shall  diligently 

inquire  of  such  riot,  rout,  or  unlawful  assembly  and  shall  re- 
cord the  same  ;  and  shall  return  the  record  to  the  next  suc- 
ceeding term  of  the  court  of  pleas  and  quarter-sessions,  or  of 
the  superior  court  of  their  county. 

33.  The  justices  of  the  peace,  dwelling  nighest  where  such  Special  duty 

J  ,         .   ,  '       I  1         1     11    1  1  1  1  of  neai-est    us- 

riot,  rout,  or  unlawful  assembly  shall  be  made,   are  charged  tices.-R.  S.  c. 
specially  to  execute  the  provisions  of  the  preceding  section.       02,  s.  30. 

34.  But  all  magistrates  shall  suppress  such  riots,  routs,  and  J;.^fgft^^?|'" 
unlawful  assemblies  :  and  they  may,  when  necessary,  use  the  &'c._r.  s.  J. 
power  of  the  county  for  that  purpose,  and  shall  take  such  of-  62,  s.  31. 
fenders  and  put  them  in  prison,  to  be   dealt  with   according  to 

law. 

35.  Whenever  any  defendant  shall  be  brought  before  a  jus-  On  malicious 
tice  of  the  peace  by  the  State's  warrant,  charged  with  any  of-  j^eTty  otfeiTes, 
fence  of  an  inferior  nature;  or  upon  a  warrant  craving  bond  &c., justice 
for  keeping  the  peace,  and  it  shall  appear  that  the  prosecution  ™^vrt'o''pay 
is  without  cause  and  malicious,  the  justice  may  in  his  discre- costs.— isis.c. 
tion  order  the  prosecutor  to  pay  the  costs,  and  may  issue  ex-  ^^• 
ecution  therefor. 

36.  Justices  of  the  peace,  resigning,  shall  deliver  their  re-  Cesignation  of 
signations  to  the  clerk  of  the  county  court,  to  be  by  hmi  trans-  '^..^j  ^^  £,1^,.^ 
mitted  to  the  proper   authority,  to  enable  the  clerk  to  keep  a  of  co.  court. 
correct  list  of  the  justices  in  his  county. 


Section  0.  Bond  for  money  and  other  things,  1  D.  &  B.  226 ;  for  sped/tc  nrticles,  2  p  & 
B.  227 ;  pnmhle  in  current  bank-notcg,  10  Ire.  58.  Liquidated  aceount,  7  Ire.  143,  5  lb. 
231,  4  Dev.  ao,  lb.  141.    Balance  due,  1  Dev.  3S7,  lb.  3»1.    Inqilitd  contracts,  2  Dcv.  111. 


568 


LANDLORD    AND    TENANT.  [ChAP.    63. 

Farmer  jurlr/menls.  5  Ire.  150,  4  Dcv.  479.  Incidental  quesllmis,  3  Ire.  395.  No  jurisillc- 
hon  of  claim  fur  damar/es,  4  Htiwks,  182,  2  Dev.  229 ;  iiur  where  election,  2  Dev.  41 1  j  nor 
of  guarmlii,  6  Ire.  300,  2  D.  &  B.  225,  4  Dev.  201;  nor  cumliliomtl  promise,  8  Ire.  0. 
traiid  on  ]urisilictlon.  Bus.  221.  Trover  for  judgment,  0  Ire.  358.  Justice  to  retain 
judgment,  11  Ire.  371. 

Skct.  7.  Seal,  when  necessarg,  11  Ire.  242,  5  lb.  72;  when  not,  7  Ire.  400.  Form  of 
loarrant,  13  Ire.  7,  11  lb.  240,  5  lb.  455,  2  D.  &  B.  227;  on  penal  statute,  1  D.  &  B.  306, 
l.Iones,  436;  how  signed,  1  Car.  L.  R.  548.  Ti-ial,  3  Mur.  121.  Judgment  mesumed 
right,  13  Ire.  72,  2  D.  &  B.  539,  3  Dev.  91;  not  cuUulerallg  impeachetl,  (i  Ire.  243,  7  lb. 
398,  4  1).  &  B.  454,  6  he.  557;  how  proved,  3  Ire.  13,  1  Dev.  415;  when  void,  3  Dev.  360, 
1  Ire.  473.  •  '  >  > 

Sect.  11.  Justice  not  to  sign  as  surely,  10  Ire.  126.  Form  of  execution,  5  Ire.  22  4 
D.  &  B.  414,  Ih.  187,  4  Dcv.  95,  3  Hawks,  403.  Jiemedg  against  slayer,  1  Dev.  378.  JJa- 
lility  of  justice  fur  insufficient  surety,  4  D.  &  B.  351. 

Skct.  13.  .\tay  postpone,  for  thirty  days  excluding  Sundays,  4  Dev.  464. 

Sect.  10.  When  relurnal/le,  4  D.  &  B.  160;  stay  after  levy.  5  Ire.  218.  Levy  after 
return  day,  1  Dev.  444.     Priority  if  execution  inter  se'.,  3  Ire.  488. 

Sect.  23.  Appeal  vacates  j'udgnient,  2  Mur.  227.  Justice  not  to  sii/n  as  surely,  1  Hawks, 
319.  May  waive  ajipcal,  2  Ire.  44.  J-ffect  of  waiver,  Bus.  392.  Liiibililu  of  surety,  2  Dcv. 
109,  3  Ire.  13.  .-  .  j  j  j, 

Sect.  24.  Justice  must  attest,  2  Hnwks,  532. 

Sect.  25.  May  return  at  subsequent  term,  1  Dev.  176. 

Sect.  31.  5  Ire.  72. 


CHAPTER    63, 


LANDLORD   AND  TENANT. 


Section 

1.  lieiits  payable  in  crops  exempt  from 

execution,  except  for  taxes, 

2.  Landlord  may  recover  for  use  and  oc- 

cupation where  demise  is  not  by 
deed.  One  let  into  possession  under 
contract  of  purcliase  liable  for  use. 


Section 

&c.  Void  parol  lenses  not  affect" 
cd. 
3.  Rents  becoming  due  after  dcatli  of 
tenant  for  life,  belong  to  his  exec- 
utor, &c. — apportioned  iwcording  to 
time  of  enjoyment. 


Rents  payable       1.  WHENEVER  the  lessee  of  land  shall,  for  the  rent  thereof, 
'emp'tTrom  exe-  ^g^ee  to  deliver  to  his  landlord  a  certain  share  of  the  crop,  or 
fortaxet'il'''"  ^  certain  part  of  a  specified  kind  thereof,  to  be  grown  on  the 
iMotcfsSjS.  1. 'and,  then   so  much  of  the  crop,   or  of  that  particular  kind 
thereof,  grown  on  the  premises  by  the  lessee  or  any  under-ten- 
ant, as  will  be  sufficient  to  satisfy  the  rent  for  the  year,  shall 
be  e.xempt  from  execution ;  and  no  part  of  the  kind  of  crop  of 
which  the  rent  is  reserved  shall  be  levied  on  and  removed  from 
the  premises  by  virtue  of  any  execution,  except  for  taxes,  under 
any  pretence  whatever,  unless  the  party  at  wliose  suit  the  exe- 
cution may  issue  shall,  before  removal,  set  apart  for  the  land- 
lord, he  having  due  notice  thereof,  the  rent  reserved,  or  shall 
satisfy  him  therefor. 

2.   Whereas  difficulties  many  times  occur  in  the  recovery  of 

rents,  where  the  demise  is  not  by  deed:  For  remedy  whereof, 

tiou  ^yhe;e  do-  Bc  U  ciiavtccl,  that  the  landlord,  when  the  agreement  is  not  bv 

mi-e  IS  not  by      i       i  ,  »  .    ^       .         -^         .       .  -^ 

deed.  deed,  may  recover  a  reasonable  satisfaction  for  the  lands,  tene- 

^osse's°sio"'°  "1^11*^)  or  hereditaments  held  or  occui)ied  by  the  defendant,  in 
mideTcontraot  action  of  debt  or  on  the  case  for  the  use  and  occu|)ation  of 
of  purchase,     what  was  SO  held  or  enjoyed;  and  if,  in  evidence  on  the  trial 


Landlord  may 
recover  for  use 
and  occnpa 


ClIAP.  64.]     LEGACIES,   DISTRIBUTIVE    SHARES,   ETC. 


569 


of  the  action,  any  parol  demise  or  any  agreement,  (not  being  ijnkie  for  use, 
by  deed,)  wherein  a  certain  rent  was  reserved,  shall  appear,  the  y^jj  pj,^^, 
plaintitl' shall  not  on  that  account  be  nonsuited,  but  may  use  le;i«es  not 
the  same  as  an  evidence  of  the  quantum  of  damages  to  be  i[i5y'c'.'i20  s. 
recovered.     And  it  is  hereby  declared,  that  one  let  into  posses-  i— n  do.  II. 
sion  under  a  contract  of  purchase  which  fails,  is  within  the '^'   '"' "' 
meaning  and  purview  of  this  section,  and  shall  be  liable  for 
his   use   and   occupation.      Provided,   hoivever,   that  nothing 
herein  contained  shall  be  construed  to  make  valid  any  parol 
lease  by  law  elsewhere  made  void. 

3.  Rents  reserved  by  tenant  for  life  upon  any  demise  which  l!™t?bocom- 
determiued  on  his  death,  for  the  year  in  which  he  may  die,  or  jeTith  of'tenant 
for  any  previous  year,  which  rents  may  not  become  payable  f'"" '.'■"<!' ^'^•"^'S 
during  his  life,  shall,  with  the  securities  taken  for  their  pay- apporti'oued  ac- 
ment,  belonEf  to  his  executors  and  administrators,  who  may  <'f"'dips  to  time 

r        .<  ■  ,■  ,1  ■  i-        of  enioyment. 

sue  for  the  same  in  an  action  on  the  case,  or  in  any  action —isjo,  c.  120, 


come  due  in  his  lifetime :  and  the  recovery  of  such  rent  shall 
be  in  proportion  according  to  the  time  the  tenant  lived  of  the 
last  year,  or  other  time  in  which  the  rent  was  growing  due  as 
aforesaid,  making  all  just  allowances. 


II.  c.  19,  s.  15. 


CHAPTER    64. 


LEGACIES,  DISTRIBUTIVE  SHARES,  &c. 


Section 

1.  Intestates'  estates,  how  distributed. 
(1.)  Between  widow  and  one  or  two 

children. 

(2.)  A  widow  and  more  than  two  chil- 
dren. 

(3.)  When  there  is  a  widow  and  no 
children. 

(4.)  When  there  are  children  and  no 
widow. 

(5.)  When  no  widow  nor  children. 

(6.)  But  a  mother,  brothers,  &c. 

2.  Advancements  to  children  to  be  ac- 


Section 

counted  for.    Representation  among 
collateral  kindred,  when  admitted. 

3.  Children  to  render  on  oath,  a  schedule 

of  property  advanced. 

4.  Child   refusing   to    account,   not   en- 

titled. 

5.  Illegitimate,  when  no  legitimate  chil- 

dren, to   be   next   of   kin    to    their 
mother. 

6.  Jlay  be  next  of  kin  to  each  other. 

7.  Legacies,  &c.,  recoverable  by  petition 

in  superior  or  county  court. 


1.    Evert  administrator  shall  distribute  the  surplus  of  the  intestates' 
estate  of  his  intestate  in  the  manner  following,  namely  : —        fr't'''b' t'^'cT 

(1.)    If  there  are  not  more  than  two  children,  one  third  part  Between 
to  the  widow  of  the  intestate,  and  all  the  residue  by  equal  por-  ".",'^.""  "i"'!""" 
tions,  to  and  among  the   ciiildren  of  the  intestate,  and   such  ureu.   . 
persons  as  legally  represent  such   children   as   may   then    be 
dead. 

(2.)    If  there  are  more  than  two  children,  then  the  widow  a  widow  and 
shall  share  equally  with  all  the  children,  and  be  entitled  to  ^  J.'JiuX-en''""^^ ° 
child's  part. 


370  LEGACIES,   DISTRIBUTIVE    SHARES,   ETC.    [ClIAP.  64. 

Wh™  there  is        (3.)    If  there  be  no  child  nor  legal  representative  of  a  de- 

no'^JhUd^eu.      ceased  child,  then  one  half  of  the  estate  shall  be  allotted  to  the 

widow,  and  the  residue  be  distributed  equally  to  every  of  the 

next  of  kin  of  the  intestate,  who  are  in  equal  degree,  and  to 

those  who  legally  represent  them. 

'  wiiontlierenre      (4.)    Jf  fhere  be  no  widow,  the  estate  shall  be  distributed,  by 

children  and  i  j.-  ii    ^i  i  -i  i  i  i  •' 

no  widow.        equal  portions,  among  all  the  children,  and   such   persons  as 

legally  represent  such  children  as  may  be  dead. 
When  no  (5.)    If  there   be  neither  widow  nor  children,  nor  any  legal 

children.  representative  of  children,  the  estate  shall  be  distributed  equally 

to  every  of  the  next  of  kin  of  the  intestate,  who  arc  in  equal 
degree,  and  to  those  who  legally  represent  them. 

broti^e™''&c'"'-  ^"^'^  ^^^^  ^^  ^^^^^'  *'^°  '^'^^^'^  °^  *'^'''  f^^^'i*?'"'.  aii^  in  the  lifetime 
E.  s.  c.'m,  s.'i.  of  the  mother,  any  of  his  children  shall  die  intestate,  without 
r2^*i852^^'7'  ^^^^'^  °^  children,  every  brother  and  sister,  and  the  reprcsenta- 
'   '        '  ■  ■  tives  of  them,  shall  have  an  equal  share  with  the   mother  of 

the  deceased  child. 
•'^<^™"^  2.    Provided,  nevertheless,  that  children,  who  shall  have  any 

dren.ac-  estate  by  the  settlement  of  the  intestate,  or  shall  be  advanced 

counted  for.      by  }iim  or  her  in  his  or  her  lifetime,  shall  account  with  each 
other  for  the  same  in  the  distribution  of  the  estate,  in  the  man- 
ner as   provided  by  the   second  rule  in  the  chapter  entitled 
"  Descents ; "  and  shall   also   account  for  the  same  with  the 
Representation  widow  of  the  intestate  in  ascertaining  her  child's  part  of  the 
erafkm'dred'"   ^^tate.     And  provided  further,  that  in  the  distribution  of  the 
when  admitted,  estate,  there  shall  be  admitted,  among  collateral  kindred  no 
R.  S.  c.  64,s.  1.  representative  after  brothers'  and  sisters'  children. 
Children  to  3.    Where  any  parent  shall  die  intestate,  who  had  in  his  or 

aTc1i*edu'ie°of'''  ^'''''  lifetime  given  to,  or  put  into  the  actual  possession  of,  any  of 
property  ad-     his  Or  her  children,  any  personal  property  of  what  nature  or  kind 
I'^erl'T.'''  ^'  soever,  such  child  shall  cause  to  be  given  to  the  administator  of 
the  estate,  an  inventory  on  oath,  setting  forth  therein  the  particu- 
lars by  him  or  her  received  of  the  intestate  in  his  or  her  lifetime. 
to^ounTnot       ^'    ^^  ^^^^  ^^^  child,  who  had  in   the  lifetime  of  the  intes- 
entitied.— R.  S.  tate,  received  a  part  of  said  estate,  shall  refuse  to  give  such  in- 
0.64,6.3.        ventory,  he  shall  be  considered  to  have   had  and  received  his 
full  share  of  the  deceased's  estate,  and  shall  not  be  entitled  to 
receive  any  further  part  or  share. 
'I'f  "''''™i''' -f       5'    When  there  shall  be  no  legitimate  issue,  every  illegitimate 
mate  children,  child  of  the  mother  dying  intestate,  or  the  issue  of  any  such 
to  be  next  of     illegitimate  child  deceased,  shall  be  considered  her  next  of  kin, 

motlier R.  S.  !i»d  ^is  such  shall  be  entitled  to  her  personal  estate ;  but  such 

C.64,  s.  4.        child  or  issue   shall   not  be  allowed  to  claim,  as  representing 

such  mother,  any  part  of  the  estate  of  her  kindred. 
May  be  next  of      6.    Illegitimate  children   born  of  the   same   mother  shall  be 
otiler"— if.  s.     considered  legitimate  as  between  themselves  and  their  repre- 
c.  C4,  s.  4.         sentatives  ;  and  their  personal  estate  shall  be  distributed  in  the 
same   manner  as   if  they  had  been  born   in  lawful  wedlock. 
And  in  case  of  the  death  of  any  such  child  or  his  issue,  with- 
out leaving  issue,  his   estate  shall  be  distributed  among  his 
mother  and  all  such  persons  as  would  be  his  next  of  kin,  if  all 
such  children  had  been  born  in  lawful  wedlock. 


Chap.  65.] 


LIMITATIONS. 


371 


7.    Legacies,  filial  portions,  distributive  shares  of  intestates'  Legacies  &c., 
estates,  sums  of  money,  or  other  estate,  clue  or  owing  from  j^Vi'iIonh!'^ ''"^' 
any  person  appointed  gvrardian  to  any  ward,  or  from  any  ex- snp'rorcumity 
eeutor  or  administrator,  or  other  person   whatsoever,  may  be  ^™"-~5;  *" 
recovered  by  petition  to  the  superior  court,  or  court  of  pleas 
and  quarter-sessions  of  the  county,  which  shall  be  served  ten 
days  before  the  court;  and  the   proceedings  therein  shall   be 
conducted  in  the  manner  provided  by  law  for  suing  by  petition, 
and  according  to  the  rules  of  practice  prescribed  for,  and  used 
in,  courts  of  equity. 


Sect.  1.  Lnw  of  domicil  governs,  Conf.  R.  146,  2  Jones,  Eq.  51.  WIto  take  as  next  of 
kin,  2  Jones,  Eq.  41,  5  Ire.  Kq.  280;  vhiU  en  ventre,  1  D.  &  B.  Eq.  77,  Bus.  Eq.  21a. 
Arlcancement,  u-liai  is,  7  Ire.  Eq.  142,  5  lb.  67,  Bus.  Ec^.  5;  by  viuthers,  1  Jones,  Eq. 
253;  grandchildren  -not  chargeable  with-,  2  Jones,  Eq.  41;  if  shoes  are  sold,  6  Ire.  Eq.  52b; 
if  theij  (lie,  7  Ire.  Eq.  138;  when  valued,  6  Ire.  Eq.  437,  Bus.  Eq.  5.  Widow,  7  Ire. 
Eq.  159. 

Sect.  4.  1  Dev.  Eq.  71;  1  Jones,  Eq.  243. 


CHAPTER    65. 


LIMITATIONS. 


Section 

1.  Persons  to  claim  their  lands  Tvitliln 

seven  years,  or  be  baiTed.  Infants, 
&c.,  to  haTe  three  years  after  dis- 
ability removed.  Persons  beyond 
seas,  eight  years  after  title  accrued. 
Proviso,  in  case  of  judgment  stayed 
or  reversed. 

2.  Possession,  twenty-one    years  under 

color  of  title,  and  known  boundaries 
to  bar  State. 

3.  Time  within  which  personal  actions 

must  be  brought. 

4.  Sureties  of  guardians  discharged  three 

years  after  ward  comes  of  age. 

5.  Suits  on  bonds  of  sheriffs  and  other 

officers,  barred  after  six  j'ears. 

6.  On  justices  judgments,jn  seven  years. 

7.  Scire  facias  against  bail,  in  feur  yeai's. 

Time  not  counted,  when. 

8.  Proviso,  in  case  of  writ  of  en-or,  re- 

versal of  judgment,  or  where  process 
cannot  be  served. 

9.  Saving  for  infants,  yfmts  covert,  &c. 

10.  Proviso,   when   defendant  is  beyond 

sea,  or  non-resident. 

11.  Creditors  of  deceased  persons  barred 

after  seven  years. 

12.  To  present  tlieir  claims  in  two  years 

or  be  barred,  if  executor  or  admin- 
istrator has  advertised. 


Section 

13.  Proviso  as  to  disabihties  of  creditors; 

and  where  executor  or  administrator 
is  non-resident. 

14.  Time  indulged  on  request  of  executor, 

&c.,  not  counted. 

15.  Time    during    contested    probate    or 

grant  of  administration  not  counted. 

16.  Mortgage    of   personalty    to    be    re- 

deemed within  two  years  after  for- 
feiture. Proviso;  mortgagee  may 
foreclose.  Saving  for  certain  dis- 
abilities. 

17.  Fees  due  to  clerks,  sheriffs,  &c.,  by  res- 

idents to  be  collected  in  three  years. 

18.  Judgments,  contracts,  &c.,  presumed 

to  be  paid  after  ten  years. 

19.  Rights  of  mortgagor  and  mortgagee, 

presumed  settled,  after  ten  years,  &c. 

20.  Adverse  possession  of  personal  prop- 

erty, three  yeai's  to  give  title. 

21.  If  one  joint  owner  of  personalty  be 

barreil  by  time,  rights  of  others  not 
affected. 

22.  Bar  of  statute  of  limitations  repelled 

but  as  to  himself,  by  admissions  of  a 
partner  or  joint  contractor. 

23.  Titles  of  railroad  and  other  compa- 

nies, to  estate  condemned  for  right 
of  way,  &c.,  not  barred  by  time  or 
occupation. 


372  LIMITATIONS.  [Chap.  65. 

Persons  to  1.    No  person,  or  his  heirs,  who  shall  have  any  right  or  title 

hii'X within  ^'^  ^'ly  Ifiiitls,  tonomciits,  or  hcreditaiiK-iits,  shall  thereunto  enter 
seven  years,  or  or  make  claim,  but  within  seven  years  next  after  his  right  or 
Infinite* &c.  to  title  descended  or  accrued,  and  in  default  thereof,  shall  be 
have  three  utterly  excluded  and  disabled  from  any  entry  or  claim  there- 
abmtvre-  "^"  after  to  be  made.  Provided,  nevertheless,  that  if  any  person 
nioveil.  entitled  to  any  right  or  claim  of  lands,  tenemenis,  or  hered- 

itaments, shall  be  at  the  time  the  said  right  or  title  first  de- 
scended, accrued,  come,  or  fallen,  within  the  age  of  twenty- 
one  ycari^,  feme  covert, non  compos  mentis,  imprisoned,  or  beyond 
seas,  then  such  person  may,  notwithstanding  the  said  seven 
years  be  expired,  commence  his  suit  or  make  iiis  entry  within 
three  years  next  after  full  age,  discoverture,  coming  of  sound 
Persons  beyond  ^lind,  or  enlargement  out  of  prison  ;  or  persons  beyond  seas, 
after  title  ac-    within  eight  years  after  the  title  or  claim  becomes  due,  and 
crued.  j^j-  ,^q  time  after  the  times  or  limitations  herein  specified  ;  but 

that  all  possessions  held,  without  suing   such  claim  as  afore- 
said, shall  be  a  perpetual  bar  against  all  maimer  of  persons 
Proviso,  in  case  whatsoever.   Provided,  also,  that  if  in  any  such  action,  judgment 
or  reversed/— '  ^*^  given  for  the  plaintilf  and  the  same  be  reversed  for  error, 
B.  S.  c.  65,  s.  1.  or  a  verdict   pass  for  the  plaintiff  and  judgment  thereon  be 
arrested,  then,  in  any  such  case,  the  plaintiff  may  commence 
a  new  action  from  time  to  time,  within  one  year  after  judg- 
ment reversed,   or   stayed,   as   aforesaid,  notwithstanding  the 
time  limited  herein  for  bringing  such  action  may  have  expired, 
if  the  action  first  brought  was  commenced  within  the   time 
above  prescribed  for  bringing  such  action. 
Possession  21         2.    Where  any  person,  or  any  claiming  under  him,  shall  con- 

vears,  uniler       ,.  ii-  •  r  iij.  i.  ij 

color  of  title,  tmue  to  be  in  possession  ot  any  lands,  tenements,  or  hered- 
and  known       itaments  under  titles   derived  from  sales  made  by  creditors, 

boundancs,  to  ,  i      •    •   j_    x  i        i        i_        i  j  ii     •         • 

bar  State.  — R.  executors,  or  administrators,  or  by  husbands  and  their  wives, 
S.  c.  65,  s.  2.  Of  by  indorsement  of  patents,  or  other  colorable  title,  for 
twenty-one  years,  all  such  possession  under  such  title,  shall 
be,  and  is  hereby  ratified  and  confirmed,  and  declared  to  be  a 
good  and  legal  bar,  against  the  entry  of  any  person,  under  the 
right  or  claim  of  the  State.  Provided,  nevertheless,  that  the 
possession  so  set  up  shall  have  been  ascertained  and  identified 
under  known  and  visible  lines  or  boundaries. 
Timewitliin  3.    AH  actions  of  trespass,  detinue,  trover,  replevin,  account, 

actions'mus'"''  upon  the  case  ;  all  actions  of  debt  for  rent,  and  actions  of 
be brotiRht.  —  (\c\-,i  iipon  any  contract  without  specialty;  all  actions  for 
^.^.  c.  5,s.  I  p(,„j^i|i^,j,  imposed  by  statute,  (unless  the  time  for  bringing 
such  jienal  actions  be  otherwise  directed)  ;  all  actions  brought 
by  an  indorsee  upon  any  bond  or  other  security  made  nego- 
tiable by  law,  shall  be  commenced  within  the  time  and  limit- 
atioft  by  this  chapter  directed,  and  not  after,  that  is,  actions 
of  trespass  for  goods  and  chattels,  quare  clausum  frejrit,  of 
detinue,  trover,  replevin,  upon  the  case,  debt  for  rent,  or  upon 
simple  contract,  for  penallies-  as  aforesaid,  by  indorsees  as 
aforesaid,  and  actions  of  account  render,  (except  such  ac- 
counts as  concern  the  trade  of  merchandise  between  merchant 


Chap.  Go.]  limitations.  37.3 

and  merchant  and  their  factors  and  servants,)  shall  be  com- 
menced within  three  years  next  after  the  cause  of  action  ac- 
crued, and  not  after ;  and  actions  of  trespass  for  assault  and 
battery,  and  imprisonment,  within  one  year  after  the  cause  of 
action  accrued;  and  actions  upon  the  case  for  words  within 
six  months  after  the  words  spoken. 

4.  Any  orphan  or  ward,  coming  to  full  age,  and  not  calling  Sureties  of 
on   his  guardian   within   three  years  therea'fter  for  a  full  set- ^^'J^.j'lj'*'^^,.. 
tlement  of  his  guardianship,  shall  be  forever  barred,  as  to  the  «ftc'r%e  of  ■"' 
sureties  on  the  bond  of  the  guardian,  from  all  recovery  thereon.  Z^'ob'Tf  ^' 

5.  All  suits  on   the  bonds  of  sheriffs,  coroners,  constables.  Suits' on  Londs 
clerks  of  the  county  and  superior  courts,  clerks  and  masters  in  otiier  offfe^eA"'' 
equity,  surveyor,  entry-taker,  county  trustee,  and  inspectors,  bnn-ed  .after'Vix 
shall  be  commenced  within  six  years  after  the  right  of  action  c.'^gs^Tf '  '^^ 
shall  have  accrued,  and  not  aftei-.  •     .  ■  • 

6.  All  actions  of  debt  upon  the  judgment  of  a  justice  of  the  On  justice's 
peace,  shall  be  commenced  within  seven  years  next  after  the  •i';''^™""'-"','" 
rendition  of  the  judgment,  or  the  teste  of 'the  last  execution  R.To^ssTsT 
lawfully  issuing  on  the  same,  and  not  after.  i"- 

7.  No  scire  facias  shall  be  sued  against  the  bail    of  any  •?■«./".  ngninst 
defendant  in  a  civil  suit  or  action,  but  within  four  years  next  ycl'^s" '^°'"" 
after  the  rendition  of  a  final  judgment,  or  the  entering  a  final " 

decree  in  tlie  suit  or  action,  and  not  after.     Provided,  hoirever,  Time  not 
that  if  the  plaintiff- shall  marry  or  die  after  judgment  or  decree  -Ts%^eC. 
as    aforesaid,    and  it  become    necessary    for  the  husband  or  is,  is. 
representative  to  be  made  a  party  before  scire  facias  can  be 
sued,  the  lapse  of  time  during  the  pendency  of  such  proceed- 
ings shall  not  be  reckoned. 

8.  Provided,  nevertlieless,  that  if  in  any  of  the  said  actions,  Proviso,  in  case 
except  actions  for  penalties,  judgment  be  given  for  the  plaintiff,  vev^fj'al'of"'""' 
and  the  same  be  reversed  by  error,  or  a  verdict  pass  for  thejudgraent,  or 
l)laintiff  and  the  judgment  thereon  be  arrested,  and  the  plain- ^''aunoVb^e'l-v- 
tiff  take  nothing  by  his  writ;  or  if  any  of  the  said  actions  shall  ed.-R.  s."  c. 
be   brought  by   original  writ,   and  the  defendant   cannot    bc^®'^'*'"' 
served  with  process,  in  every  such  case,  the  plaintiff,  his  heirs, 
executors,   or   administrators,  as  the   case   shall  require,  may 
commence  a  new  action  from  time  to  time,  within  a  year  after 
judgment  reversed  or  judgment  arrested,  or  till  the  defendant 

can  be  served  with  process. 

9.  Provided  furUicr,  that  if  any  person  entitled  to  have  any  Siivin?  for  in- 
of  such  actions,  except  persons  suing  for  penalties,  shall  be  at  |!|J",'|;;/^^''_ 
the  time   the   cause   of    action  accrued,   within   the   age   of  R.  s.  e.  65,'s.4, 
twenty-one  years,  feme  covert,  non  compos  vreniis,  imprisoned,  ^'  ^'  ^°'  ^^^ 

or  beyond  seas,  then  such  person  may  bring  the  same  actions, 
if  he  will  bring  them  within  the  times  as  before  limited,  after 
his  coming  to  or  being  of  full  age,  discovert,  of  sound  mem- 
ory, at  large,  or  returned  from  beyond  seas,  as  other  persons 
having  no  such  impediments  might  have  done. 

10.  Provided  further,  that  when  any  person,  against  whom  Proviso,  when 
there  is  cause  of  action,  shall  be  beyond  sea,  or  a  non-resident  ^uV'! »*'-"'"* 
of  the   State,  at  the  time  such  cause  of  action  accrued,  the  resident.— u. 

32 


374  LBHTATioNS.  [Chap.  65. 

s.  c.  65,  s.  4.—  plaintiff  may  bring  his  action  against  such  person,  after  his 
1848,0.59.  return,  within  the  times  as  are  hereinbefore  limited  for  bring- 
ing such  actions. 
Creditors  of  n.  Creditors  of  any  deceased  person  shall  make  their  claim 
bnne/^to'?  within  seven  years  after  the  death  of  such  debtor,  otherwise 
years.— R.  S.    such  Creditors  shall  be  forever  barred. 

To^present  12.    Every  creditor  of  any  deceased  person,  residing  within 

their  claims  in  the  State,  shall  within  two  years,  and  if  he  reside  without 
imrrcdr* '"''''' the  State,  shall  within  three  years  from  the  qualification  of 
Ifex'roradm'r  the  executor  or  administrator,  exhibit  to  and  demand  of  such 
— R."sJc!'6^"*'  executor  or  administrator  his  debts  and  claims  of  every  kind  ; 
6- 12.  and  if  the  creditor  shall  fail  so  to  do,  and  to  bring  suit  for  such 

debts  and  claims  within  the  time  aforesaid,  he  shall  be  forever 
barred  of  the  recovery  of  the  same.    Provided,  that  the  execu- 
tor or  administrator  shall  have  advertised  within  the  time,  and 
in  the  manner  prescribed. 
Proviso  as  to        13.    Provided  further,  that  if  such  creditor  be  under  any  of 
disabilities  of    the  disabilities,  or  the   executor  or  administrator   be  a  non- 
where°Vi'r°  or  resident  of  this  State,  as  declared  and  provided  in  the  ninth 
adm'risnon-    ^^^^  tenth  scctious  of  this  chapter,  the  creditor  may  bring  his 
S^^c.  60',  s.  12.  action  within  one  year  after  such  disabilities  are  removed  or 
—1848,  c.  59.    ^he  return  of  the  executor  or  administrator,  notwithstanding 
the  time  limited  for  bringing  such  actions  may  have  expired,  be- 
fore the  return  of  such  person,  or  the  said  disabilities  be  removed. 
Timeindui-  14.   Provided,  also,  that  if  any  creditor,  after  demanding  his 

Red  on  re-  _  ,jg]jt  or  claim,  shall  delay  to  bring  suit  at  the  special  request  of 
ITc.^ot  count- the  executor  or  administrator,  the  time  of  such  indulgence 
65'7^2^'  *^'  ^^^'^  "°*'  ^^  reckoned  in  the  time  limited  for  bringing  the  action. 
During  con-  15.    In  reckoning  time,  when  pleaded  as  a  bar  to  suits,  that 

or^'ran^t'^of''ad  P^nod  shall  uot  be  couuted  which  elapses  during  any  contro- 
m'u  not  count-  versy  on  the  probate  of  a  will,  or  granting  letters  of  adminis- 
^^-  tration. 

MortgnM  of         16.    Whenever  any  mortgagor  of  personal  property,  or  his 

FedeemedwUh- legal  representative,  shall  have  failed  to  perform  the  conditions 

intwoj'ears     of  the  mortgage  for  two  years  after  the  time  of  performance 

after  forfeiture,  specified  therein,  and  shall  have  omitted  to  file  a  bill  in  equity 

claiming  his  equitable  right  to  redeem  such  property,  for  two 

years  after  tiie  forfeiture  of  the  conditions  of  the  mortgage,  he 

shall  be   forever  barred  of  all  claim  in  equity  thereto.     Pro- 

Proviso ;  mort-  yij^^d  nevertheless,  that  nothing  herein  contained  siiall  be  con- 

gagee  may  '  '  ~      -  p,.         ,,..,,.  ., 

foreclose.         strucd  to  prevent  any  mortgagee  Irom  tilmg  nis  bill  in  equity 

to  foreclose   the  mortgage,  at  any  time  after  the  forfeiture  of 

Saving  for  cer-  the  Conditions  specified.      And  provided  further,  that  if  any 

If  ".^k''s''      ^^^^  mortgagor  shall  become  lunatic,  or  nan  compos  mentis,  or 

05,  s.  19.  be  removed  beyond  seas  or  beyond  the  limits  of  tiie  State,  he 

shall  be  allowed  the  further  time  of  one  year  from  the  removal 

of  sucli  disability,  within  which  he,  or  his  legal  representative, 

may  claim  in  equity  his  right  to  redeem. 

Fees  due  to  17.  All  fees  due  to  the  clerk  of  any  court  of  record,  or  to 

clerks,  siitTiflTs,  any  sheritf,  or  other  officer,  by  the  sentence,  judgment,  or  de- 

de'iils  to'ije'coi-  crec  of  a  court,  from  persons  other  than  non-residents  of  the 


Chap.  65.]  limitations.  375 

State,  shall  be  collected,  or  suit  commenced  therefor,  within  lected  in  three 
three  years  from  the  time  of  the  judgment  rendered,  when  no  ^^e"'~9'  *" 
execution  has  issued  thereon,  or  within  three  years  from  the        '      ' 
issuing  of  the  last  execution,  and  not  after. 

18.  The  presumption  of  payment  or  satisfaction  on  all  judg-  Judgments, 
ments,  decrees,  contracts,  and  agreements  had  or  made,  shall  p?e™nK'iit'i.i, 
arise  within  ten  years  after  the  right  of  action  on  the  same  "f'^,'' '<""  >■'■■";'• 
shall  have  accrued,  under  the  same  rules  which  now  prevail.      l'-''-c.ij5,-..i.i. 

19.  The  presumption  of  payment,  or  abandonment  of  the  Rights  of  mort- 
right  of  redemption  of  mortgages  and  of  other  equitable  in-  ,^"|.°/„agc!-  pre 
terests,  shall  arise  within  ten  years  after  the  forfeiture  of  said  sumed  settled 
mortgage,  or  last  payment  on  the  same,  or  the  right  of  action  &'^J^LK"!^'.''e.'''' 
shall  have  accrued  on  any  equitable  interest  or  claim,  under  m,  s.  li. 

the  like  rules  as  aforesaid. 

20.  Whenever  any  person  shall  remain  in  possession  of  a  Adverse  pos 
slave  or  other  personal  property,  until  such  possession  is  pro-  scrndpropeny 
tected  by  the  statute   of  limitations,  he  and  those   claiming  three  years,  to 
under  him,  shall  be  deemed  and  held  to  have  a  good  and  abso-  |'7c.  65 ^s7i8'. 
lute  title  to  such  slave  or  other  personal  property,  against  all 

persons  whose  claim  is  barred  by  the  said  statute.  Provided, 
that  nothing  herein  contained  shall  in  any  way  affect  the  law 
that  requires  gifts  of  slaves  to  be  in  writing. 

21.  Whenever  several  tenants  in  common,  or  joint  owners  If  one  joint 
of  personal  property  shall  bring  their  action   to  recover  the  °J^"^[  °^/'"'" 
same,  or  for  damages  done  to  such  property,  and  any  of  them  h^ml  rights 
shall  be   barred  of  their  recovery  by  limitation  of  time,  the  alreaeT— °' 
rights  of  the  others  shall  not  be  affected  thereby;  but  they  may  1852,  c.'gi. 
maintain  then-  suit,  notwithstanding  such  bar,  and  have  a  ver- 
dict and  judgment  according  to  their  right  and  interest  in  said 
property. 

22.  In  suits  to  recover  any  debt  or  demand  due  from  any  Barofstat.iim. 
firm  after  the  dissolution  thereof,  or  from  the  makers  of  any  l:T"'"'^r"*/* 

-..'  J  10  himself,  bv 

promissory  note,  no  act,  admission,  or  acknowledgment  done  admissions  of  a 
or  made  by  any  partner  after  the  dissolution  of  the  copartner-  Pftrtnf"-  orjoint 

!-•  1  !•  ii  1  f    ,-,  •  '„  .       contractor. — 

snip,  or  by  any  ot  the  makers  of  the  promissory  note  after  the  1852,  o.  5i,  s.  i. 
statute  of  limitations  shall  have  barred  the  same,  shall  be  re- 
ceived as  evidence  to  repel  the  statute,  but  as  against  the  part- 
ner or  the  maker  of  the  promissory  note,  doing  the  act  or  mak- 
ing the  admission  or  acknowledgment. 

23.  No  railroad,  plank-road,  turnpike,  or  canal  company  shall  Titles  of  rail- 
be  barred  of,  or  be  presumed  to  have  conveyed,  any  real  estate,  companfes'to  "^ 
right  of  way,  easement,  leasehold,  or  other  interest  in  the  soil,  estate  con- 
which  may  have  been  condemned  or  otherwise  obtained  for  fig"'"^'/ ^"[^.^ 
its  use,  as  a  right  of  way,  depot,  station-house,  or  place  of  &e.,  not  barred 
landing,  by  any  statute  of  limitation,  or  by  occupation  of  the  cupaUon?'  °''" 
same  by  any  person  whatever.     But  all  such  jjroperty  shall  be 

and  remain,  and  be  deemed  and  held  to  be,  the  property,  es- 
tate, and  right  of  such  company,  according  to  the  terms  of  its 
charter,  until  it  may  be  shown,  that  the  same  has  been  de- 
parted with,  by  some  writing  duly  executed  by  such  company 
to  convey  the  title  thereof,  from  and  out  of  said  company. 


LITERARY    FUND,   AKD    COMMON    SCHOOLS.    [ChAP.  G6. 

Sect.  1.  Tlie  sfnInU  iiichitles powers,  3  Dev.  6;  but  not  n<jld  to  dinrer,  1  D.  &  B.  213; 
reversioner,  u-hen.  1  D.  &  B.  313.  Jvntrij  vilhin  seven  years,  6  Ire.  361,  13  lb.  84,  10  lb. 
237,  12  lb.  11.  Possession,  what  is,  4  Ire.  310,  1  lb.  635,  lb.  293,  lb.  56;  corcrs  what,  13 
Ire.  269,  12  Ire.  373,  3  lb.  578,  4  D.  &  B.  164;  u-hen  ailnrse,  11  Ire.  469,  1  Dev.  Eq.  55,  5 
Ire.  711,  4  D.  &  B.  527,  lb.  291.  Lapping  deeds,  7  Ire.  1S6,  lb.  175,  1  lb.  535.  Color  of 
title,  Bus.  303,  5  Ire.  711,  3  lb.  578,  4  D.  &  B.  64.  Fur  decisions  on  tlie  proviso,  see  refer- 
ences under  Sect,  8. 

Sect.  2.   4  Ire.  32. 

Sect.  3.  When  iiclion  commenced,  2  D.  &  B.  491, 3  lb.  21.  When  statute  begins  to  run : 
between  tenants  in  common,  3  Dev.  317 ;  u'hen  no  one  to  sue  or  be  sued,  2  Ire.  440 ;  turls,  9 
Ire.  491,  5  lb.  634,  1  lb.  147;  bailments,  13  Ire.  459,  8  Ire.  Eq.  153,  5  lb.  Ill;  money  paid 
to  defendant's  use,  12  Ire.  2G7,  Bus.  173,  5  Ire.  359,  3  Ire.  461,  3  Dev.  421;  in  case  of 
agent,  11  Ire.  77.  Surety  who  pai/s,  i  Dev.  360;  indorsee  of  bond,  2  Dev.  498;  against  ex- 
ecutor, 13  Ire.  174,  2  lb.  440;  harboring  slaves,  9  Ire.  202.  ^ferchanl's  accounts,  1  D.  & 
B.  320.  Huns  ai/ninsl  public  bodies,  4  Dev.  668.  When  possession  adverse,  2  Joues,  113, 
8  Ire.  Eq.  123.  'Pleading:  declaration,  2  D.  &  B.  236,  lb.  371.  Pleas,  <J'-c-.,  2  D.  &  B. 
371,  3  Dev.  402;  in  suits  for  penalties,  3  Dev.  43.  Jn  equity,  8  Ire.  Eq.  201,  7  lb.  282,  1 
D.  &  B.  Eq.  86;  account,  4  Ire.  Eq.  1;  tenants  in  common,  6  Ire.  Eq.  303;  trusts,  3  Slur. 
583,  2  Ire.  Eq.  9,  lb.  282,  1  Jones,  Eq.  18,  1  Dev.  Eq.  191,  1  D.  &  B.  Eq.  457;  spccifc 
performance,  4  Ire.  Eq.  306.  Commencement  of  suit,  3  Ire.  Eq.  126.  /low  statute  re- 
pelled: new  promise,  what  sufficient,  11  Ire.  445,  2  D.  &  B.  Eq.  82,  1  Ire.  Eq.  75;  what 
not,  1  Jones,  91,  Bus.  420,  lb.  58,  13  Ire.  272,  lb.  97,  11  Ire.  447,  lb.  86.  Frmtd,  4  Ire. 
4S1.     In  equity,  1  Ire.  Eq.  75,  2  D.  &  B.  Eq.  147. 

Sect.  5.  Comhibk,  13  Ire.  421 ;  sheriff,  4  Dev.  412,  3  Mur.  213.  Demand,  Bus.  294. 
Not  revived  btj  new  promise,  4  Hiiwks,  44. 

Sect.  6.   New  promise  not  available,  11  Ire.  427. 

Sect.  8.  Nonsuit,  4c.,  13  Ire.  123,  6  lb.  428.  Attempt  to  procession,  13  Ire.  150,  2  Dev. 
233,  2  Iliiwks,  347.     Bail,  4  Ire.  30.     Howpleaded,  6  Ire.  428. 

Sect.  9.  IHsabililies  cumulative,  12  Ire.  149,  4  Hawks,  310,  3  lb.  608.  Infants,  8  Ire. 
121,  2  Mur.  62,  12  Ire.  149.  Feme  covert,  9  Ire.  491,  5  lb.  634;  waste,  Bus.  30.  Beyond 
seas,  1  Dev.  16. 

Sect.  11.  2  Ire.  87,  3  Mur.  594.  Wlien  no  one  to  sue  or  be  s)ted,  1  Ire.  Eq.  117,  2  Ire. 
440,  1  lb.  66.  No  bar  io  legatee,  5  Ire.  Eq.  348;  or  next  of  kin,  1  Ire.  Eq.  196.  No  saving, 
2  Dev.  338.  Executor  de  son  tort  may  plead,  2  Hawks,  544.  Wlien  not  a  bar,  3  Dev.  178, 
2  D.  &  B.  218,  1  Ire.  Eq.  117. 

Sect.  12.    One  obligor  living,  2  Ire.  87;  heirs,  2  Mur.  108;  howpleaded,  i  Dev.  460. 

Sect.  14.   7  Ire.  204.  ' 

Sect.  18.   Iloio  repelled.  Bus.  421,  lb.  499,  7  Ire.  348,  4  lb.  198, 13  lb.  310. 

Sect.  19.  6  Ire.  Eq.  348,  8  lb.  287,  lb.  201,  lb.  123,  2  D.  &  B.  218, 1  Dev.  Eq.  68,  lb. 
338;  mortgage  by  construction,  7  Ire.  Eq.  282.  How  repelled,  6  Ire.  Eq.  97.  Estate  reverts 
on  payment.  Bus.  164. 

Sect.  20.   11  Ire.  154,  8  lb.  121.    Bailment,  13  Ire.  459, 1  Dov.  Eq.  55, 1  D.  &  B.  13. 

Sect.  2L   5  Ire.  463. 


CHAPTER    66. 

LITERARY  FUND,  AND   COMMON   SCHOOLS. 

I.  —  LITERARY   FUND. 


Section 

1.  Board  of  literature  established  and 

incorporated.    Its  style. 

2.  Of  wliom  composed.     Secretary  ap- 

pointed.   Pay  of  members  and  sec- 
retary. 

3.  Property,  stocks,  and  funds  -vested  in 

corporation.    Deposited  in  treasury. 
How  paid  out. 

4.  Treasurer  to  keep  account  of  receipts, 

&c.,  and  report  U>  Asseml)1y. 
6.  Duty  of  board  in  liaving  swamp  lands 

sui"veyed,  drained,  &c. 
6.  Written   consent    of  owners  to  vest 

title  in  corporation. 


Section 

7.  Wlien  owners  refuse,  liow  corporation 

to  proceed. 

8.  Lands  of  persons  improved  by  canals, 

&c.,  to  pay  a  proportion  of  expense. 

9.  Board  may  appoint  an  engineer,  sur- 

veyor, &c. 

10.  May  enter  upon  any  lands  for  surrey- 

inp,  &c.  Titles  to  swamp  lands  not 
registered,  vested  in  corporation. 
Proviso. 

11.  May  sell  reclaimed  lands.    Proceeds 

of,  and  entry-money  to  become  prin- 
cipal. 


Chap.  66.]  literary  fund,  and  common  schools. 


377 


Section 

12.  Shall  expend  no  money  to  reclaim 

lands,  unless,  &c. 

13.  May  employ  counsel,  and  compromise 

suits. 

14.  May  buy  or  exchange  lands. 

15.  Turnpike   from  Plymouth  to  Pungo, 

&;c. 

16.  Amount  appropriated.     Contractor  to 

give  bond.     How  land  condemned 
for  road. 

17.  Board  may  contribute  lands  for  a  ca- 

nal from  Waecamaw  to  Little  River. 

18.  Appropriation  of  five  thousand  dol- 

lars, for  Open  Ground  Prairie. 


Section 

19.  Forfeitures  of  land,  by  persons  failing 

to  pay  tax. 

20.  Agent  of  swamp  lands  appointed. 

21.  His  duties. 

22.  May  be  removed.     Compensation  one 

thousand  dollars. 

23.  Board  may  procure  others  to  prose- 

cute suits  and  share  the  recovery. 

24.  Presumption  of  title  in  favor  of  litera- 

ry board,  or  their  assigns. 

25.  Board    baiTed   by    time,   only  when 

State  is. 


ir. COMMON     SCHOOLS. 


26.  Income  of  literary  fund,  how  distrib 

uted. 

27.  Superintendent  for  State,  of  common 

schools,  elected  by  Assembly.  For 
counties,  appointed  by  county  courts. 

28.  Chairman  for  county  superintendents. 

29.  Chairman  to  give   bond.    His   com- 

pensation. 

30.  Clerk  of  county  court  to  be  clerk  of 

board  of  superintendents,  &c.  His 
duty.  Notices  issued  by  him,  served 
by  sheriff. 

31.  Fund  paid  to  counties,  when,  and  how. 

32.  Tax  to  be  laid  by  county  for  school 

purposes.  Collected  by  sheriff.  Pay- 
ment by  him,  how  enforced. 

33.  Free  negroes  not  taxed  for  schools,  &c. 

34.  School  districts  laid  off  and  recorded. 

35.  School  committees  elected  by  voters 

of  members  of  house  of  commons. 
Election,  when  and  how  held,  &c. 
Appeal  from  school  committee  to 
board  of  superintendents. 

36.  School  committee,  a  body  corporate. 

Its  rights  and  powers. 

37.  Sites  for  school-houses  procured  by 

committee.  How  laud  condemned 
for  site. 

38.  Committees    to    report    within    one 

month. 

39.  Fund  distributed  equally  among  dis- 

tricts. 

40.  Notice  given  of  amount,  due  eaoli  dis- 

trict. 

41.  What  taught  in  schools,  &c.    When 

children  may  attend  schools  out  of 
their  districts. 

42.  Committee  of  examination  appointed 

by  superintendent.  When  convened. 
Terra  of  office. 

43.  Teacher  to  obtain  certificate  of  qnali- 

32 


fication.  Certificate  good  for  one 
year. 
School  committee  to  employ  teacher. 
His  duty,  and  how  paid.  Committee- 
man not  to  be  employed. 
Chairman  not  to  pay  draft,  unless 
accompanied  with  report  of  school 
committee,  &c. 

.  Committee  not  to  have  scliool  funds  ; 
may  reckon  expense  and  draw  on 
chairman  for  purchase  of  site,  &c. 

.  To  visit  scliools  ;  may  joiu  others  to 
continue  schools. 

.  Board  may  make  other  needful  rules. 

.  Chairman  to  keep  account  of  moneys 
received  and  paid  out.  Examined 
by  committee  of  finance  or  clerk  of 
county  court.  Shall  annually  report 
to  State  superintendent,  &c.  Copies 
of  reports  to  be  filed,  and  posted  up 
at  court  house. 

.  Shall  pay  over  money  to  successor;  in 
case  of  default,  liow  recovered. 

.  Liable  to  twelve  per  cent,  damages  on 
drafts  unpaid,  &c. 

.  JlisappUcation  of  school  fuud,  a  mis- 
demeanor. 

.  Penalty  for  neglect,  on  superintendent, 
committee-man,  and  clerks.  County 
solicitor  to  pr6secute. 

!.  State  superintendent,  duties  of.  Tc 
see  that  school  laws  are  executed, 
money  duly  applied,  defaulters  sued, 
and  deliver  lectures. 

).  To  attend  literary  board  when  direct- 
ed.   His  pay. 

3.  Treasurer  to  furnish  him  yearly  state- 
ment of  money  paid  to  counties. 

r.  Superintendent  to  issue,  yearly,  in- 
structions and  forms  for  returns. 


378 


LITERARY   FUND,  AND    COMMON   SCHOOLS.    [ChAP.  C6. 


Section 

58.  To  make  annual  report  to  governor. 

Report  to  be  printed. 

59.  Pcnulty  on   St.ite  superintendent  for 

neglect  of  duty.     May  be  removed. 
Vacaucy,  filled  by  literary  board. 


Section 

60.  Allowance   to  clerk  and  sheriff  paid 

out  of  school  fund. 

61.  Penalty  of  $500  on  chainnan,  for  fail- 

ing to  report  to  superintendent. 


Its  style.— R. 


Of  whom  com- 
posed. 


Secretary  ap 
pointed. 
Pay  of  mem 


Property, 
stocks,  and 
funds  vested 
corporation 


I.    LITERARY   FUND. 

Prard^ffijtc™-  1.  There  shall  be  a  board  of  literature  in  this  State,  de- 
ed'and°inco'?po-  nominated  and  called  by  the  name  of  "  The  President  and  Di- 
rated.  rectors  of  the  Literary  Fund  of  North  Carolina ; "  and  by  that 

name  they  are  incorporated  into  a  body  politic  and  corporate. 

2.  The  governor,  in  virtue  of  his  office,  shall  be  president  of 
the  board;  and  there  shall  be  three  other  members  thereof 
biennially  appointed  by  the  governor,  with  the  advice  of  the 
council  of  State  ;  but  in  case  of  a  vacancy,  it  shall  be  filled  by 
the  other  members.  The  board  may  appoint  a  secretary  to 
record  their  proceedings.     The   members   shall  receive  three 

tot^t  ^Tr '1"'^  dollars  each  per  day  and  their  travelling  expenses,  for  the  time 
09.  "'  they  may  be  employed  in  the  service,  and  the  secretary  shall 
receive  three  dollars  for  each  day  during  their  actual  session ; 
to  be  paid  out  of  the  literary  fund. 

3.  The  following  property  and  funds  shall  be  vested  in  the 
said  corporation  and  their  successors,  in  trust,  as  a  public  fund 
for  education,  and  the  establishment  and  support  of  common 

^' 67,''s.'^3,' 4.— schools,  namely :  All  shares  of  stock  owned  bv  the  State  in 
iS42,'c.36,s.2;  the  bank  of  the  State  of  North  Carolina,  and  in  the  bank  of 
1850,  c.  90.  Cape  Fear;  all  the  shares  of  stock  owned  by  the  State  in  the 
Wilmington  and  Raleigh  Railroad  Company,  and  in  the  Wil- 
mington and  Manchester  Railroad  Company,  and  all  the  profits 
and  dividends  arising  therefrom ;  all  the  swamp  lands  of  the 
State,  not  heretofore  duly  entered  and  granted  to  individuals, 
and  all  the  swamp  lands  that  now  belong,  or  may  hereafter 
come  to  the  State ;  all  the  dividends  arising  from  stock  owned 
by  the  State  in  the  Cape  Fear  Navigation  Company,  the  Roan- 
oke Navigation  Company,  and  the  Clubfoot  and  Harlow's  Creek 
Canal  Company;  the  taxes  imposed  on  licenses  to  retailers  of 
wines,  cordials,  or  spirituous  liquors,  and  auctioneers;  all 
moneys  paid  to  the  State  for  entries  of  vacant  land ;  all  the 
bonds  due  and  owing  to  the  president  and  directors  of  the 
literary  fund  by  the  Wilmington  and  Raleigh  Railroad  Compa- 
ny, and  by  the  Raleigh  and  Gaston  Railroad  Company;  all  the 
bonds  due  and  owing  to  said  president  and  directors  by  indi- 
viduals, by  corporations,  or  by  the  State.  And  all  the  said 
moneys,  stocks,  bonds,  and  funds  shall  be  deposited  in  the 
treasury  of  the  State,  and  kept  distinct  and  apart  from  all  other 
public  money,  subject  to  the  orders  of  the  said  president  and 
How  paid  out.  directors,  and  shall  be  paid  out  and  delivered  by  the  treasurer 
of  the  State,  to  the  order  of  the  board,  certified  and  subscribed 
by  the  secretary,  and  countersigned  by  the  jjresident. 
Treasurer  to  4.    The  treasurer  of  the;   State  shall  keep  a  fair  and  regular 

ofrTceipteX.,  account  of  all  the  receipts  and  disbursements  of  the  literary 


Deposited  in 
treasury. 


Chap.  6G.]  literary  fund,  and  comioN  schools.  379 

fund,  and  shall  report  the  same  to  the  General  Assembly,  at  ""^  report  to 
the  same  time  when   he   makes   his  biennial  account   of  the  s."c.  66. 
ordinary  revenue :  and  the  board  shall  report  to   the  General 
Assembly  the  manner  in  which  the  fund  has  been  applied  or 
vested,  with  such  recommendations  for  the  improvement  of 
the  same,  as  to  them  shall  seem  expedient. 

5.  The  board  shall  be  invested  with  full  power  to  adopt  all  P"ty  of  board 
necessary  ways  and  means  ior  causmg  so  much  oi  the  swamp  swamp  lands 
lands  to  be  surveyed,  as  they  may  think  capable  of  being  re-  ^,"''y^5'f''v  _ 
claimed;  and  after  said  lands,  or  any  part  of  them,  shall  be  k.  s.  e'er, s. 5. 
surveyed,  to  contract  for  the  construction   of  canals,  ditches, 

and  other  works,  necessary  for  the  purpose  of  reclaiming  the 
same,  upon  such  terms  and  conditions  as  may  be  prescribed  by 
the  corporation  ;  the  contractor  giving  bond  with  security  for 
the  faithful  performance  of  the  agreement. 

6.  Whenever  it  shall  be  necessary  to  construct  any  of  said  '^^'''itten  con- 

■     T    •  1       1  •  I  •  ■  sent  of  owners 

works  on  the  lands  oi  any  individual  proprietor,  his  written  to  vest  title  in 
consent,  without  any  formal  deed  of  conveyance  of  the  lands  j{"'y°c'67"s~6 
necessary  to  the  work  and  its  future  enjoyment,  shall  vest  the 
title  thereof  in  the  corporation  forever;  and  when  any  infant, 
or  person  non  compos  mentis,  or  feme  covert,  shall  be  owner 
thereof,  his  guardian  shall  be  authorized  to  give  such  consent; 
and  the  feme  covert  and  her  husband  may  do  so,  without  any 
private  examination ;  and  the  consent  so  given  shall  be  valid 
to  all  intents  and  purposes. 

7.  Whenever  the  consent  of  the  proprietor  shall  be  withheld,  ^^^'^  owners 
the  corporation  or  their  agents  may  enter  on  the  lands,  and  lay  corporation  to 
oft'  so  much  as  may  be  necessary  to  be  used  in  said  work,  the  proceed.— K. 

S  c   67  s  7 

value  of  which  shall  be  assessed  to  the  proprietor  according  to 

law;  and,  upon  the  payment  thereof,  the  title  shall  be  vested 
in  the  corporation  forever.  Provided,  that,  in  the  assessment 
of  valuation,  the  benefit  that  will  accrue  to  the  proprietor  by 
reason  of  the  improvement,  may  be  likewise  reckoned  and  set 
off  against  the  damages. 

8.  When  there  are  lands  owned  by  individuals,  which  can  Lands  of  per-. 
be  reclaimed  by  reason  of  the  canals,  ditches,  or  other  works  of  bv"c!inais''&c. 
the  corporation,  the  same  shall  be  assessed  to  contribute  an  to  pay  a  pro- 
equitable  proportion  of  the  costs  of  said  works  ;  which  assess- pgns^'L^jj'^s" 
ment  shall  be  made  by  the  board,  or  a  board  of  commissioners  c.  67,  s.  8. 
appointed  by  them ;  and  the  same   shall  be  charged  on  the 

lands.  Provided,  however,  that  the  corporation,  by  contract 
with  individual  proprietors,  may  agree  upon  the  assessment, 
and  accept  payment  thereof  in  labor  or  money. 

9.  The  said  board  may  appoint  an  engineer  and  sra'veyor.  Board  mayap- 
and   other   servants,  to   plan   the  works;  they  may  enact   all  iJe",'.' s,"rvevl)^r 
necessary  rules  and  regulations  for  surveying  and  reclaiming  &<-.—R.  S.'c. 
the  swamp  lands;  for  assessing  the  lands  of  individuals  which  ''''^•^• 
may  be  improved  by  the  works,  and  for  collecting  assessments  ; 

and  the  assessments  shall  be  published  weekly  for  five  weeks 
in  one  of  the  newspapers  published  in  Raleigh,  and  also  filed 
in  the  office  of  the  clerk  of  the  superior  court  of  the  county 


380  LITERARY   FUND,  AND    COMMON   SCHOOLS.     [ChaP.  66. 

wherein  the  lands  assessed  are  situate.     If  no  objections  are 
filed  at  the   court  next  after  such  advertisement,  the   assess- 
ments shall  be  confirmed  by  the  court,  and  the  lands  adjudged 
liable  for  the  amount,  and  execution   may  be   issued  for  the 
sale  thereof  to  satisfy  the  same,  on  motion  to  the  court  for  that 
purpose  ;  and  if  any  reasons  be  shown  against  the  assessments, 
they   shall   be   heard   and  determined   by  the   court,  and  the 
assessments  shall  be  increased  or  diminished  as  the  court  shall 
adjudge. 
Mayentemp-       10.    The  corporation,  and  their  officers  or  agents,  shall  have 
for^urvey'ing,   a  right  to  enter  upon  the  lands  of  all  persons  whomsoever,  for 
&c.  the  purpose  of  surveying;  and  all  the   grants  and  deeds  for 

swamp  lands,  heretofore  made,  shall  be  proved  and  registered 
in   the    county  where   the    lands    are    situate,   within   twelve 
Titles  to  months;  and  every  such  grant  or  deed,  not  being  so  registered 

nof  regSed,  within  the  time  aforesaid,  shall  be  utterly  void  and  of  no  effect, 
vested  in  cor-  and  the  title  of  the  proprietor  in  said  lands  shall  revert  to  the 
Kov\'°o"-R.  S.  State.  Provided,  however,  that  the  provisions  of  tills  section, 
c.  67,  s.  10.—  relating  to  the  registration  of  grants  and  deeds,  shall  be  appli- 
1850,  c.  102,  6.  ^^j^jg  to  the  swamp  lands  only  which  have  been  surveyed 
or  taken  possession  of  by,  or  are  vested  in  the  president  and 
directors  of  the  literary  fund  of  North  Carolina,  or  their  agents. 
May  sell  re-  n     'Yhe   corporation    may   sell   and   convey   any   part  of 

claimed  lands.    .,       ,        ,  ,  .    i  i  i    .  i     c        ii       i       ^        ■        xu    i. 

Proceeds  of  the  lands,  which  may  be  reclaimed,  for  the  best  price  that  can 
and  entry-  ^jg  obtained,  and  the  proceeds,  as  also  money  received  on 
"meprincipai.  entries  of  vacant  land,  shall  become  a  part  of  the  principal  of 
""?;  ^■,1/7'     the  literary  fund  :  but  they  shall  not  sell  any  canal  by  them 

f.  11.— 1844,  c.  ,.ijxi-ii 

E6,  s.  1.  constructed  under  this  chapter. 

Shall  expend  12.  The  corporation  shall  not  expend  any  part  of  the 
recS^iands  moneys,  stocks,  or  property  herein  vested  in  them,  for  the  pur- 
uuless,  &o.  '  pose  of  reclaiming  the  said  lands,  but  by  direction  of  the  Gen- 
eral Assembly;  and  the  money  received  on  entries  of  vacant 
land  shall  also  be  added  to  the  principal  of  the  fund. 
May  employ  13.    The  board  may  employ  counsel  learned  in  the  law,  to 

counsel,  and     aid  and   assist  them  in  the  investigation  and  prosecution  of 
suite^™""^*      their  title  to  any  of  their  swamp  lands ;  and  they  may  compro- 
mise upon  such  terms  as  to  them  shall  seem  reasonable  and 
just,  for  the  title,  so  as  to  secure  to  the  corporation  an  inde- 
feasible right  in  said  lands. 
May  buy,  or  14.   Whenever,  in  the  process  of  draining,  it  may  be  neces- 

cxc'iiange  g^ry,  in  order  to  prevent  a  sacrifice  of  the  interests  of  the  State, 
"^  *'  to  purchase  small  tracts  owned  by  individuals,  the  board  may 

buy  them,  or  exchange  for  them  some  other  portions  of  the 
swamp  lands ;  and  the  lands  thus  acquired  shall  be  held  by 
them  as  other  swamp  lands. 
Turnpike  from  15.  The  board  shall  contract,  upon  such  terms  and  condi- 
Piymouthto  tions  as  ihcy  may  think  proper,  for  the  construction  of  a  turn- 
&cl!i'is4™c.  pike-road  from  Plymouth,  in  Washington  county,  to  some 
88,  B.];i848,  point  ou  or  near  Pungo  river,  in  Beaufort  county,  the  more 
L58,' s.  1,  2,' 3 1  effectually  to  bring  into  market  the  public  lands  in  the  coun- 
1852,  Res.        ties  of  Hydc  and  Washington.     Provided,  however,  that  the 


Chap.  6G.]  literary  fund,  and  common  scnooLa.  381 

board  may  appoint  three  commissioners,  who,  after  being  duly 
sworn  to  perform  the  duties  assigned  them  with  their  best 
skill  and  ability  and  without  partiality,  shall  have  full  power  to 
carry  into  execution  the  provisions  of  this  section,  as  etlectu- 
ally  as  the  board  may  do  it.  And  the  commissioners  thus 
appointed  shall  signify  to  the  board  their  intention  of  serving, 
within  ten  days  after  being  informed  of  their  appointment. 

16.  For  the  purpose  of  making  said  road,  the  board  may  Amount  appro- 
dispose  of  five  thousand  dollars'  worth  of  the  swamp  lands,  P"^ 
if  not  already  done,  and  appropriate    therefor  the    proceeds, 
together  with  the  sum  of  six  thousand  dollars  directed  hereto- 
fore to  be  advanced  out  of  the  money  belonging  to  the  board 
of  literature.     And  the  board  or  the  commissioners  shall  take  CnntrMtorto 
bond  from  the  contractor,  with   good  security,  in  double  the  S'^*^  "^^  • 
amount  of  the  contract,  conditioned  for  its  due  and  faithiul 
performance.     And  if  the  board  or  commissioners  cannot  agree  "I'^J^-jf^-JJ^^y 
with  the  owners  of  land  over  which  the  road  will  pass,  or  for  foi- road.— 1848, 
land  whereon  to  erect  houses   for  the  use  of  the  hands  em- c.  8,  s.  2,3,  &c. 
ployed,  or  for  earth  for  the  use  of  the  road  ;  or  if  the  owner  be 
a  feme  covert,  under  age,  non  compos,  or  out  of  the  State,  then, 
on    application  to   two  justices   of  the  peace   of  the  county 
wherein  the  lands  lie,  they  shall  issue  their  \%Tit  to  the  sheritt 
of  the  county,  commanding  him  to   summon,  within  twenty 
days,  a  jury  of  eighteen  disinterested  and  reputable  freeholders, 
twelve  of  whom,  after  meeting  on  the  premises,  being  duly 
drawn  and  sworn  by  the  sheriiT  to  act  impartially,  shall  lay  otf 
and  value  the  land  required  for  the  construction  of  said  road, 
and  the  damages  the  owners  will  sustain  by  reason  of  the 
same  :  and  the'inquisition  shall  be  returned,  under  their  hands, 
into  the  next  court  of  pleas  and  quarter-sessions  of  the  county, 
and,  upon  paying  the  amounts  assessed  to  the  owner  of  the 
land  or  his  guardian,  or  into  the  office  of  the  clerk  of  the  court, 
they,  or  the  contractor  under  them,  may  enter  upon  the   land 
laid  off  and  use  it,  and  construct  the  road  thereon ;  and  the 
road  shall  be  held,  deemed,  and  used  as  a  public  highway. 

17.  Whenever  a  canal  shall  be  opened  from  Waccamaw  ^™^?butT 
river  to    Little  river,  near  where  the  latter  empties  into  the  lands  for  a 
ocean,  and  it  shaU   have    been   clearly  ascertained  that  any  ^(,'^^^(™™.tg 
valuable  portion  of  the  said  swamp  lands  have  been  drained  Little  river.— 
by  the  said  canal,  and  have  been  made  more  valuable  thereby,  ^^■^^'  "■  ^^■ 
the  board  may  allow  to  the  individuals  opening  the  canal,  such 

of  the  public  lands  thus  drained,  and  convey  the  same  by  deed, 
as  the  board  may  consider  just  and  reasonable. 

18.  The  board  shall  inquire  into  the  practicability  and  ex-  ^^f^l^J^^"'' 
pediency  of  draining  certain  lands  in  Carteret  county,  known  Open  Ground 
as  the    Open  Ground  Prairie ;  and,  should  they  deem  it  ad-  iv.wie.-i850, 
vantageous  to  do  so,  may  commence  the  draining  thereof  ;  and 

for  that  purpose,  five  thousand  dollars  are  appropriated  from 
the  literary  fund. 

19.  Any  person   who   may  at  any  time   have   obtained  a  Fwfeih.res  rf 
grant  from  the   State  for  any  swamp  lands  which  have  been 


382 


LITERARY   FUND,   AND    COMMON   SCHOOLS.    [ChaP.    66. 


Agent  of 
swamp  lands 
appointed. — 
1854,  c.  48. 

His  duties. 


paTtlx-iM"  ^"'■^''^yed  or  taken  possession  of  by  the  president  and  di- 
C.36. '■  "' rectors  of  the  literary  fund  of  North  Carolina,  or  their  agents, 
and  who,  or  his  heirs  or  assigns,  shall  not  iiave  regularly  listed 
the  same  for  taxation,  and  paid  the  taxes  due  thereon  to  the 
persons  entitled  to  receive  the  same,  such  grantee,  and  his 
heirs  or  assigns,  shall  forfeit  and  lose  all  right,  title,  and  interest 
in  the  said  swamp  lands,  and  the  same  shall  ipso  facto  revert 
to  the  State,  and  be  vested  in  the  said  corporation  upon  the 
same  trusts  as  they  hold  other  swamp  lands;  unless  such  per- 
son, his  heirs  or  assigns  shall  have  paid  to  the  sheriff  of  the 
county  in  which  said  lands  lie,  prior  to  the  twenty-first  day  of 
January,  one  thousand  eight  hundred  and  forty-four,  all  the 
arrearages  of  taxes  due  on  said  lands,  with  interest  thereon, 
from  the  time  the  taxes  ought  to  have  been  paid. 

20.  The  president  and  directors  of  the  literary  fund  of  North 
Carolina  may  annually  appoint  an  agent  to  superintend  and 
supervise  all  the  swamp  lands  belonging  to  the  literary  fund. 

21.  The  agent  shall  devote  his  entire  attention  to  the  busi- 
ness;  abandon  all  prior  engagements  that  may  conflict  with 
the  interest  of  the  board  ;  aid  and  assist  counsel  in  the  prep- 
aration and  trial  of  all  suits  that  may  be  directed  by  the 
board ;  collect  information  as  to  the  location  and  value  of  all 
said  lands ;  survey  or  have  surveyed  such  tracts  of  said  lands, 
or  such  other  lands  necessary  to  ascertain  the  location  of  lands 
belonging  to  the  board,  as  he  may  deem  necessary,  under  the 
direction  of  the  board.  He  shall  make  reports  from  time  to 
time  to  the  board,  of  all  the  information  he  obtains,  with  such 
suggestions  as  he  may  deem  proper ;  and  shaU  prepare  a  state- 
rnent  of  each  tract  of  land  owned  by  the  board,  and  its  loca- 
tion, quantity,  as  well  as  ascertained  and  probable  value,  dis- 
tinguishing between  those  tracts  the  title  to  which  is  doubtful, 
or  good;  and  this  statement  shall  be  recorded  by  him  in  a 
book  to  be  kept  by  the  board,  and  in  a  manner,  by  index  or 
otherwise,  easy  for  reference. 

M!v?  be  remo-  22.  The  agent  may  be  removed  by  the  board  at  any  time, 
and  another  appointed  to  supply  the  vacancy,  the  agent  re- 
moved being  paid  a  pro  rata  compensation.  The  agency  may 
be  continued  in  the  discretion  of  the  board.     The  compensa- 

componsation  tj^^  ^f  ^^e  agent  shall  not  exceed  one  thousand  dollars ;  and, 
besides  his  salary,  he  shall  receive  no  other  compensation  for 
what  he  is  required  to  do  or  have  done  as  aforesaid,  except 
that  the  necessary  incidental  expenses  of  surveys  required 
as  aforesaid,  (not  including  surveyor's  fees,)  shall  be  paid  by 
the  board. 

23.  The  president  and  directors  of  the  literary  fund  shall 
have  full   power  and    authority  to  agree  with  any  person  to 

t^"erec"overy-  P™''*'''"*^*^   ^^cir  claim  to   any  swamp  lands  in  any  county  or 

-  -  -  ■  counties,  or  to  survey  and  identify  their  lands  in  such  counties, 
and  allow  to  such  person  a  share  of  any  such  land,  as  a  com- 
pensation for  his  services. 


Board  may 
procure  others 
to  prosecute 


Chap.  66.]  liter.iry  fund,  and  common  scnooLS.  383 

24.  In  all  controversies   and    suits  for  any  of  the   swamp  Presumption 
lands,  to  which  the  said  corporation  or  their  assigns  shall  be  of  lifry  b.mrd, 
a  party,  the  title  to  the  said  lands  shall  be  taken  and  deemed  or thdr luis^^iis. 
to  be  in  the  corporation  or  their  assigns,  until  the  other  party  53,    '  °"     ' 
shall  show  that  he  hath   a   good  and  valid  title  to  the  said 

lands  in  himself. 

25.  No  statute  of  limitation  shall  affect  the  title  or  bar  the  BoarO^barred 
action  of  the  said  corporation,  or  their  assigns,  unless  the  same  w^ieirstaTe  L 
would  protect  the  person  holding  and  claiming  adversely -18*2,  c.  so, 
against  the  State. 

II.    COMMON   SCHOOLS. 

26.  The  net  annual  income   of  the  literary  fund  shall  be  J,';^^^",^'^'^";;, 
annually  distributed  among  the  several  counties  of  the  State,  distributed.— 
in  the  ratio  of  their  federal  population,  to  be  ascertained  by  js^o-^^;^^^^^- \' 
the  census  ne.vt  preceding  such  distribution. 

27.  There  shall  be  appointed  a  superintendent  of  common  Superintendent 
schools  for  the  State,  to  be  chosen  by  the  General  Assembly,  co'nfmon' "'' 
and  to  hold  his  otiice  two  years  from  the  time  of  his  election,  schools  elected 
and  untilhis  successor  is  duly  appointed.     The  courts  of  pleas    ^     ^^'°   ^'' 
and  quarter-sessions   of  the  several  counties,    (a    majority  of 

the  justices  being  present,)  at  the  term    held   next  after  the 

last  day  of  December  in  each  year,  shall  appoint  not  more 

than  ten,  nor  less  than  five  superintendents  of  common  schools  !^pp„^°^"d  by 

for  their  county,  whose  term  of  office  shall  begin  on  the  third  co.courts.— 

Monday  of  April  succeeding  their  appointment,  and  continue  Ig^gj^'g?; 

for  one  year,  and  until  others  have  been  appointed  and  entered 

upon  their  office. 

28.  The  superintendents  shall  meet  on  the  third  Monday  in  Chairman  for 
April  as  aforesaid,  and  elect  one  of  their  number  chairman.       i'^enJentr'^" 

29.  The  chairman  of  the  board  of  superintendents,  before  C'l;'"™'-!"  to 
he  enters  upon  the  duties  of  his  office,  shall  give   bond  with  ^'"^ 
good  security,  payable  to  the  State  of  North  Carolina,  in  such 

sum  as  the  board  may  deem   adequate,  conditioned  for  the 

faithful  application  of  the  funds  that  may  come  to  his  hands, 

and  the  discharge  of  all  his  duties;  which  bond  shall  be  filed 

with  the  clerk   of  the   county  court ;  and  the  chairman  shall 

be  allowed  to  retain   not  exceeding   two    and  one    half  per  ^^j^ ^°™J|"f " 

centum  of  the  moneys  which  shall  pass  through  his  hands,  36.  ' 

as  a  compensation  for  his  services. 

80.    The  clerk  of  the  county  court  shall  be,  ex  officio,  clerk  Clerk  ofco. 
of  the  board  of  superintendents,  and  shall  record  in  a  book  ^fboVrdo'f  "^su- 
to  be  kept  for  that  purpose,  all  its  proceedings,  and  such  other  perintendcuts, 
papers  touching  the  subject  of  common  schools  as  the  board  nYsduty. 
may   direct;  and  shall  safely  keep  all  papers  which   may  be  Notices  issued 

•'       .         .  1  •  .      1      1        ii       1  1         TT        1      II   •  J-      ii       bv  him,  served 

committed  to  his  custody  by  the  board.  He  shall  issue  to  the  ,,y  si,cntr.— 
sheritr  notices  of  the  appointments  of  superintendents  and  imi,  c.  3i3. 
school  committees,  which  the  sheriff  shall  deliver. 

31.    The  share  of  the  literary  fund  to  which  each  county  ^';j'j;;J.P-'"'^^'°^^ 
may  be  entitled,  shall  be  due   and  payable  on  or  before  the  and  how. 
first  Monday  of  October  in  every  year ;  and  shall  be  paid  to 


384 


LITERARY  FUND,  AND   COMMON    SCHOOLS.    [CnAr.    6G. 


the  chairman  of  the  board  of  superintendents,  or  his  lawful 
attorney,  upon  tlie  warrant  of  the  comptroller. 
T:ix  to  be  lai.i       32.    The  court  of  pleas  and  quarter-sessions  of  every  county, 
for  scbool" pur- a  majority  of  the  justices  being  present,   sliall  levy  a  tax  in 
roses.  the  same  manner   that    other    county  taxes    are    now  levied, 

which  shall  not  be  less  than  one  half  of  tiie  estimated  amount 
to  be  received  by  said  county  for  that  year  from   the   literary 
Colieeteaby     fund;  and  the  sheriff  shall  collect  and  pay  over  the   same  to 
sheriff.  ij^g  chairman  of  the  board,  on  tlic  day  of  their  first  meeting ; 

and  ills  bond,  given  to  secure   the  payment  of  county  taxes, 
shiill  contain  a  condition  for  the   faitiiful   collection  and   pay- 
ment of  the  school  taxes  ;  and  for  a  breach  of  tlie  condition, 
the  chairman  shall  have  the  same  remedies   against  him  and 
his  sureties,  as  are   given  to  the  county  trustee  for  enforcing 
Pfiymentby     the  payment  of  ordinary  county  taxes  ;' except  that  his  riglit 
forceJ.— isii,   of  action  shall  arise  on  the  first  Thursday  of  January  in  every 
c.  30,  s.  c.     '   year,  and  tlie  penalty  on  tlie  sheriff  shall  go  to  the  use  of  com- 
mon scliools  in  his  county. 
rortaxeTfor       ^'^'    ^°  couiity  court  shall  tax  any  free  person  of  color  for 
solioois, &c.—    the  support  and   maintenance    of   common  schools;  and    no 
1844.  person  descended  from  negro  ancestors  to  tiie  fourth   genera- 

tion inclusive,  shall  be  taught  in  said  schools, 
ttf'ts"!  uroff        ^^'    '^^^^  board  of  superintendents  may  lay  o(f  in  their  coun- 
and recorded.- ti'^s  school  districts,  (and  number  the  same,)  of  such  form  and 
1S44.  size  for  one  school,  as  they  may  think  most  convenient  for  the 

inhabitants  of  the  county,   and  may  alter  the  boundaries  of 
the  same,  causing  said  boundaries  and  such  alterations  to  be 
recorded  by  their  clerk. 
School  com-         35.    The  free  white  men  of  the  several  school  districts,  enti- 
iTv  voters'of'^'' ^^^'l  ^°  ^°t^  ^^i'  members  of  the  house  of  commons,  on  the  first 
members  of      Saturday  in  April  in  every  year,  shall  vote  by  ballot  for  three 
house  of  com.    men,  to  be  styled   "the   school  committee,"  Avhose  term  shall 
commence  on   tlie  first  Monday  in   May  following,  and  con- 
tinue  for  one  year,  and  until  others  are  chosen  ;  said  election 
shall  be  held  at  such  convenient  place  in  the  school  district  as 
the  board  may  designate  ;  and  the  three  persons  having  the 
highest  number  of  votes  shall  be  declared  elected  "  the  school 
committee  ;  "  and  the  board  may  fill  any  vacancy  which  may 
occur  in  the  committee    by  death,  removal,  or  other   cause. 
Election,  The  chairman  of  the   board   shall  give   notice   in  writing,  at 

held" ('!•"'  ''""  ^^^^^'^  ""^  '"""^  public  places  in  each  district  of  the  electioii,  at 
AjipLui' irom     '^ast  tell  days  before  the   same  ;  and   the  board  shall  appoint 
ro''inl''M™"r-'"  *^'^"   freeholders  of  the  district  to  conduct  the   election.      The 
temloii"".— """  said  freeholders  shall  give  to  the  board,  whose  term  of  service 
1850' cts''^"'"'^'"'^'"*^'""  on  the   third   Monday  of  April  thereafter,  on  the 
■'''^'     ■       day  of  their  first  meeting,  a  certilicate    under  their   hands,  of 
the  number  of  votes  received  by  each  person  ;  and  the  board 
shall  declare  the  three  persons  receiving  the   highest  number 
of  votes,  the   school  committee.     Providrf/,  neverl/ic/rss,  that 
whenever  the  districts  fail  to  make  an  election,  the  board  shall  . 
appoint  the  school  committee,  who    shall  contiinie   in   ollice 


Chap.  66.]   literary  fund,  and  common  schools.  385 

until  others  are  chosen ;  and  whenever  any  of  the  citizens 
may  consider  themselves  aggrieved  by  the  committee,  or  any 
one  of  the  committee-men  of  their  district,  an  appeal  may  be 
made  to  the  board  of  superintendents,  who  shall  hear  and  de- 
cide on  the  merits  of  the  complaint,  and  remove  any  commit- 
tee man  who,  in  their  opinion,  has  violated  his  duty. 

36.  Each  committee  of  the  several  school  districts  shall  be  School  com- 
a  body  corporate,  by  the  name   and   style   of  "  The   School  corporate.     ^ 
Committee  of  district,  number         ,  of  the   county  of  ,"  I''  !'°'?'l."i^44 
as  the  case  may  be  ;  and  in  that  name  shall  be  capable  of 
purchasing  and  holding  real  and  personal  estate,  and  of  sell- 
ing and  transferring  the  same,  for  school  purposes  ;  and  pros- 
ecuting and  defending  all  suits  for  and  against  the  corpora- 
tion. 

37.  The  school  committee  shall  designate,  and  purchase  or  Sites forschool- 
lease,  or  receive  by  donation,  a  suitable  site  for  a  school-house  cured'by™om- 
as  near  the  central  part  of  the  district  as  may  be  convenient ;  mittee. 
shall  hire,  purchase,  build,  or  receive  by  donation,  a  school- 
house  of  such  form  and  dimensions  as  they  may  deem  suit- 
able ;  and  whenever  they  are  unable  thus  to  obtain  such  site, 

they  shall  report  to  the  succeeding  county  court,  with  the  rea- 
sons, why  they  have  not   procured  the  same  ;  and  the  county  f^o"'  •■'"'i  con- 
court  thereupon  shall  appoint  three  disinterested  freeholders,  si"tes.  —  iS44, 
who  shall  lay  off  not  more  than  two  acres,  and  not  less  than  '^^  3®-^-  ii; 

•  •  •  1852  c   19 

one  acre,  as  a  site  for  a  school-house  in  such  district,  and  con-  "' 
demn  the  same  for  the  use  aforesaid,  and  assess  the  value 
thereof,  which  assessed  value  shall  be  paid  by  the  school  com- 
mittee to  the  owner  of  the  land  so  condemned,  or  into  the 
office  of  the  county  court  clerk,  for  the  benefit  of  such  owner ; 
and  the  land  condemned  and  paid  for,  shall  be  vested  in  the 
school  committee  and  their  successors.  Provided,  hoivever, 
that  the  freeholders  aforesaid  shall  not  condemn  any  land 
improved  by  buildings,  culture,  or  otherwise.  And  provided, 
further,  that  if,  after  the  purchase  or  condemnation  of  land 
for  school  purposes,  the  school  committee  see  fit  to  remove 
the  school,  then  the  original  owner  of  the  land,  or  his  vendee, 
shall  have  the  right  to  take  the  land  at  the  original  price,  with 
the  privilege  to  the  committee  of  removing  the  building  or 
other  improvements. 

38.  The  school  committees  shall,  in  one  month  after  their  Committee  to 
term  of  office  commences,  report  in  writing  to  the  chairman  ono^month."— 
of  the  board  of  superintendents,  the   number  and  names  ol  isii- 

the  white  children  in  their  districts,  of  six  and  under  twenty- 
one  years  of  age ;  and  on  failure  so  to  do  shall  each  forfeit 
and  pay  five  dollars,  to  be  recovered  by  warrant  before  any 
justice  of  the  peace,  in  the  name  of  the  chairman  of  the  county 
superintendents,  to  be  appropriated  to  the  use  of  the  school 
disti-ict  in  which  such  failure  shall  occur. 

39.  The  moneys  received  from  the  literary  fund  and  from  u,"d'^equaliy" 
county  taxes,  shall  be  distributed  equally  among  the  school  among  dis- 
districts.  '"'-''«• 

33 


386  LITERARY   F0ND,   AND    COMilON   SCHOOLS.     [ChAP.    66. 

Notice  given  of  40.  The  chairman  shall  give  notice,  by  written  publication 
amt  ueeac  .  ^^  ^y^^  court  house  door  of  his  county,  of  the  amount  due  each 

school  district,  soon  after  the  money  is  received. 
Whattanghtin      41.    Any  branch  of  English  education  may  be  taught  in 
scioos, &o.      g^jj  schools;  and  all  white  persons  over  tlie  age  of  six  years 

shall  be  permitted  to  attend  the  school  of  their  district,  as 
When  children  scholars,  and  receive  insti'uctions.  Provided,  that  the  cliil- 
sciioois  out  of  dren  in  any  one  district,  may  by  the  consent  of  two  superin- 
theiraistiict.—  tendcnts  or  committee,  attend  the  schools  in  any  adjoining 

1844,  c.  36.  J.    ,    .    ,  '  J  J  O 

district. 

Com.  of  exam-      42.    The  board  of  superintendents  shall  annually  appoint  a 

pointed  by" su-  Committee   of  examination,  of  not  more  than  three   persons, 

perintendent.     (of  whom  the  chairman  of  the  board  shall  be  one,)  who  shall 

examine  into  the  qualifications,  both  mental  and  moral,  of  all 

such  as  may  apply  for  employment  as  teachers  ;  and  shall  be 

When  con-       convened  by  the  chairman  at  least  three  times  during  the  year, 

""'^  ■  at  some  central  point  in  the  county ;  of  the  times  and  places 

of  meeting,  the  committee  or  chairman  shall  post  a  notice  at 

—  1846°'^  "T"^''-  ^^^  *^"°''  °^  *'^*^  court  house.     The  committee  shall  continue  in 

1852,  c.'is.     '  office  until  their  successors  are  appointed. 

Teacher  to  ob-  43.  No  person  shall  be  employed  as  a  teacher,  unless  he 
of'qua'^iific'at'ion!  obtain  from  a  majority  of  the  committee  of  examination  of 
the  county  in  which  he  seeks  employment,  a  certificate  of  his 
Certificategood  good  moral  character,  and  sufficient  mental  quaUfications  :  and 
I646"\b62.'^'~  "o  certificate  shall  be  good  for  a  longer  term  than  one  year 

from  the  date  thereof. 

Schooicommit-     44.    The  school  committee  shall  contract  with  a  suitable 

tl.acher'''°^    teacher  for  their  district,  for  such  time  as  the  funds  of  the  dis- 

His  duty,  and    trict  wiU  allow ;  and   at  the  end  of  the  term  of  his  employ- 

owpai  .         nient,  he  shall  render  to  the  committee  the  number  and  names 

of  the  children  who  have  gone  to  his  school,  specifying  the 

number  of  days  each  one  went,  and  the  studies  taught;  and, 

on  his  rendering  such  statement,  the  committee  shall  pay  him 

Comniittee-      ^jy  giving  him  an  order  ou  the  chairman :  and  no  committee- 
man not  to  be       ./   o         o 
employed.        man  shall  be  a  teacher. 

Chairman  not       45.    The  chairman  of  the  board  shall  in  no  case  pay  any 
unfess  ccom-  ^'^^^^  drawn  on  him  in  favor  of  a  teacher,  unless  the  same 
pniiied  with  re-  shall  be  accompanied  with   a  report  from  the  school  commit- 
port  of  school  ^gg   statins:  the  name  of  the  teacher  in  the  district,  the  length 
184G,  c.  106;     of  time  for  which  the  school  may  have  been  kept  during  the 
1852,0.18.       current  year,  and    the  several  branches  taught ;  and  the  chair- 
man shall  not  pay  such  draft,   unless   the   teacher  exhibit  a 
regular  certificate  of  mental  and  moral  qualifications  from  a 
majority  of  the  committee  of  examination,  dated  within  one 
year  of  that  time. 
Com.  not  to  46.    No  committee  shall  receive  into  their  hands  any  of  the 

funds;  may  funds  set  apart  for  common  schools ;  but,  whenever  it  shall 
reckon  expense  becomc  necessary  for  them  to  incur  any  expense  in  the  pur- 

anddrawon  ,  r    i        i     /        ^i  x-  c  i        i  i  ..u 

chairman  for  chasc  of  land  lor  tlic  ercction  of  a  school-house,  or  other 
purcimso^f  necessary  purpose,  the  committee  may  state  an  account  of 
1844,  c.  36.       the  expense,  and  draw  on  the  chairman  for  the  same  ;  which 


Chap.  66.]   literary  fuxd,  and  common  schools.  387 

account  shall  accompany  the  draft,  and  shall  be  paid  by  the 
chairman,  provided  the  school  district  shall  have  in  his  hands 
a  sum  sutficient  to  pay  the  same. 

47.  The  school  committee  shall  visit  the  sfhools  from  time  To  visit 

to  time,  and,  generally,  perform  all  such  duties  as  they  may  jo'|°°',ycJ^"o 
deem  necessary  to  their  successful  operation  ;  and  they  may  continue 
unite  with  individuals,   or  other  districts,  for  the  purpose  of  i844°c.' i^. 
raising  a  sum  sufficient  to  carry  on  their  schools  for  the  long- 
est time. 

48.  The  board   of  superintendents   may  make  such  other  Bom-d  may 
regulations  relating  to  their  schools,  not  inconsistent  with  the  "e^^rutrui''e3 
provisions   of  this  chapter  and  the  laws  of  the  land,  as  they  —  isw. 
may  deem  necessary  to  their  usefulness. 

49.  Tlie  chairman   of  the  board   of   superintendents   shall  chairman  to 
keep  a  true  and  just  account  of  all  moneys  received  and  ex-  ^ n^ouevrre- 
pended  by  him  during  the  time  of  his  service,  showing  when  ceivea  and  paid 
and  of  whom  received,  and  for  what,  and  to  whom  paid,  and  °"'" 

the  balance  remaining  on  hand;  and  shall  lay  the  same  before  Examined  hv 
the  committee  of  finance  of  his  county ;  and  if  there  is   no  Tdel'^oTcT' 
committee   of  finance,  then   before   the   clerk   of  the   county  court, 
court,  together  with  the  vouchers  in  support  of  the  charges 
therein  made,  on  or  before  the  first  Monday  in  September  in 
each  year ;  which  account,  the  committee  of  finance,  or  the 
clerk  of  the  county  court,  (as  the  case  may  be,)  shall  carefully 
examine,  and  if  found  correct,  shall  certify  the  same  to  be  cor- 
rect; if  done  by  the  clerk,  he  shall  certify  under  his  hand  and 
the  seal  of  his  office  ;  and  he  shall  annually,  on  or  before  the  Shall  annually 
third  Monday  of  October,  report  in  writing  to  the  superintend-  'uperLtendent' 
ent  of  common  schools  for  the   State,  at  Raleigh,   a  copy  of  &o. 
the  above  account,  together  with  the   number  of  children  in 
his  county ;  the  number  who  may  have  been  taught  in   the 
schools  of  his  county  the  preceding  year ;  for  what  time  the 
schools    have    been    kept   up    in    the    several    districts  ;    the 
names  of  the  committee  of  examination  ;  the  number  of  cer- 
tificates issued  by  the   committee  of  examination  during  the 
year  preceding,  designating  in   separate  columns  the  number 
of  female  teachers,  and  the  number  of  male  teachers ;  with 
such  other  facts  and  suggestions  as  he  may  deem  useful.    And  '^"P'''^  "^  '"'^ 
he  shall  make  two  copies  of  said  report,  one  of  which  he  shall  S pos'^ed*'!fp ' 
file  with  the  clerk   of  the  board,  to  be  recorded  in  the  book  in  ■■"  ™"'''  '"'"*^- 
which  are  kept  all  the  proceedings  of  the  board  ;  and  the  other  is52',*c.'iV' 
he  shall   put   up   for  public  inspection   in   some  conspicuous 
place  in  the  court  house  of  his  county. 

50.    If  in  settling  such  accounts,  any  balance  shall  be  found  Shall  pay  over 
remaining  in  the  hands  of  the  chairman,  the  same  shall  im-  ecssoT:  in  case 
mediately  be  paid  by  liim  to  his  successor  in   office;  and  if  of  default,  imw 
any  moneys  in  his  hands,  whether  reported  or  not,  be  improp-  uw' c.^^'i" 
erly  detained,  his  successor  luay,  at  any  time  and  in  any  court 
of  his  county,  recover  the  same  with  interest  in  a  summary 
manner,  against  the   defaulting  chairman  and  his  sureties,  or 
any  of  them,  in  the  same  manner  and  with  the  same  penalty 


388  LITERARY   FUND,   AND    COMMON   SCHOOLS.     [ChAP.    66. 

as  prescribed  in  case  of  judgment  against  the  sheriff  at  the 

instance  of  the  county  trustee,  by  giving  five  days  notice  to  the 

persons  against  whom  judgment  is  moved. 
Liable  to  12  per      51.    If  the  chairman  shall  fail  to  pay  on  demand  any  draft 
on"draftrm?-'   which  he  ought *to  pay,  the  same  may  be  recovered  against 
paid,  &o.  him,  in  the  name  of  the  payee  or  his  assignee,  with  twelve  per 

centum  damages,  besides  interest,  for  its  detention. 
Misapplicatioa       52.    If  the  board  of  superintendents,  or  any  member  thereof, 
of  school  fund,     j^  jj  jnisappiv  any   of  the  school  funds,  the  person  offending, 

amisdemeauor.  .  '  ^  •  r         i     n  i        i  i         -ix        f  •    j  „_ 

or  assentuig  thereto,  shall  be  deemed  guilty  of  a  misdemeanor. 
Penalty  for  53.    If  any  person,  having  accepted  the  appointment  of  su- 

perintendent^"" perintcndent  or  committee-man,  or  any  clerk  of  the  county 
comm!and  '  court,  shall  refuse  or  neglect  to  perform  the  duties  required  of 
clerks.  j^-,-^  |3y  ^j-jjg  chapter,  he  shall  forfeit  and  pay  fifty  dollars,  to  be 

County  solicit-  applied  as  other  school  moneys ;  and  the  county  solicitor  shall 
or  to  prosecute.  pj.osecute  suit  for  the  recovery  thereof. 

State  superin-  54.  The  superintendent  of  common  schools  for  the  State 
tendent,  duties  gj^^jj  guperintend  the   operations  of  the    system   of  common 

schools,  and  see  that  the  laws  in  relation  thereto  are  enforced; 
To  see  that  shall  call  on  the  chairmen  of  the  several  boards  of  county 
school  laws  are  superintendents,  who  fail  to  make  returns  to  him  according 
money'diliy  to  the  provisions  of  this  chapter ;  shall  see  that  moneys  dis- 
appiied.  tributed  for  the   purposes  of  education   are   not  misapplied  ; 

^edfaiidde-  and  that  the  proper  actions  provided  by  law  are  brought 
liver  lectures,  against  all  the  officers  and  agents  of  the  system  who  are  liable 
— 1852,  c.  18.    ^Q  ^j^g  gJ^fJ^g_     ^^^^  the  superintendent,  at  such  places   as  he 

may  deem  proper,  and  as  often  as  possible,  shall  deliver  public 

lectures  on  the  subject  of  education,  and  endeavor  to  enlist 

the  feelings  of  the  people  in  the  cause. 
To  attend  55.    The    superintendent,  when   notified,    shall    attend   the 

litera'-^board^  meetings  of  the  board  of  literature  as  long  as  it  shall  direct ; 
His^ay.'^'^"     '  and  for  such  attendance  shall  have  the  same  compensation  as 

is  allowed  to  members  of  the  board. 
Treasurer  to         56.    The  treasurer  of  the  State  shall  furnish  an  annual  state- 
furnish  him  ^  ^     ^l^g  superintendent,  of  the   sums  disbursed  from  the 

yearly  statem't  „,'■  i  ,.  i^-xi  fi.i 

of  money  paid  literary  fund  to  the  several  counties,  and  ot  the  names  oi  tlie 
to  counties.       persons  receiving  the  same. 

Supcrintend'nt      57.    The  superintendent  shall  annually  issue  to  the  e.xamin- 
insmlSionf '^  ing  committee  of  each  county,  a  circular  letter  of  instructions 
and  forms  for    and    suggestions    as  to  the  qualifications  of  teachers,  and  a 
issTc'Ts        recommendation  of  the  school  books  proper  to  be  used;  and 
'  '    '       he  shall  also  have  prepared  and  send  to  the  chairmen  of  the 
boards  of  county  superintendents,  printed  forms  with  proper 
blanks,  upon  which  to  make  their  returns  to  him ;  all  which 
returns,  when  received,  he  shall  send  to  the  office  of  the  secre- 
tary of  State,  to  be  filed  by  him. 
To  make  58.    The   superintendent,  on   or  before  the  first  Monday  in 

to""'''crno7'  January  in  every  year,  shall  make  a  written  report  to  the  gov- 
ernor, giving  a  detailed  and  condensed  account  of  the  manner 
in  which  he  has  performed  his  duties;  of  the  operations  of  the 
system   of  common  schools,  together  with   such   suggestions 


Chap.  66.]   literary  fund,  and  common  schools.  ,389 

and  recommendations  as  he  may  deem  proper;  with  tables 
showing  the  number  of  white  persons,  six  years  old  and  under 
twenty-one,  in  each  county  in  the  State  ;  the  number  who 
have  attended  school  during  the  year;  the  length  of  time  the 
schools  have  been  kept  open,  and  the  number  of  school  dis- 
tricts in  each  county;  the  luimber  of  male  and  female  teachers 
licensed  in  each  county  to  teach  common  schools  during  the 
year,  and  the  average  salaries  of  teachers;  of  which  report  the 
governor  shall  cause  one  hundred  and  fifty  copies  to  be  printed  Kepo'-ttobe 
in  cheap  pamphlet  form;  fifty  whereof  the  governor  shall  re- ''""""'' 
ceive  and  distribute  among  the  libraries  of  the  State,  Univer- 
sity, Davidson,  Wake-Forest,  Catawba,  and  Normal  colleges, 
the  public  offices  of  the  State,  and  such  literary  institutions,  in 
or  out  of  the  State,  as  he  shall  deem  proper:  and  one  hundred 
shall  be  received  and  distributed  by  the  superintendent,  in  such 
manner  as  will  best  promote  the  cause  of  common  education 
in  the  State. 

59.  If   the    superintendent    shall    wilfully    and    habitually  Penalty  on 
neglect  his  duties,  or  shall  use  his  official  position  for  the  pur-  tm^dentX""' 
pose  of  propagating  sectarian  or  political   party  doctrines,  he  "^giect  of  duty, 
shall  be  hable  to  be  removed  by  the   unanimous  vote  of  the  May  be  re- 
board  of  literature.     Provided,  that  a  written  specification  of '"'"'^'*- 
charges,  with  the  names  and  address  of  those  preferring  them, 

shall  be  delivered  to  him  thirty  days  before  his  trial,  and  he 
shall  be  allowed  to  adduce  evidence  and  be  heard  in  his 
defence.  In  all  such  cases,  a  record  of  the  proceedings,  and  of 
the  charges  and  answer,  shall  be  made  by  the  board  of  liter- 
ature, and  be  subject  to  the  inspection  of  the  General  Assem- 
bly. And  in  case  of  his  removal,  death,  or  resignation,  the  Vacancy  filled 
board  of  literature  shall  appoint  another  for  the  residue  of  the  boart^-[852, 
unexpired  term.  c.  18. 

60.  The  clerk  shall  receive  a  reasonable  compensation  for  ^"°''™n<=et'' 
his  services,  to  be  allowed  by  the   board  of  superintendents,  sherift-paid  out 
and  both  he  and  the  sheriff  shall  be  paid  out  of  the  school  of  school  fund. 
fund. 

61.  If  the   chairman   of  the  board  of  superintendents  shall  Penalty  of 
fail  to  make  a  report  to  the  superintendent  for  the  State,  as  mat  ft"  tiling 
provided  in  section  forty-nine,  he  shall  pay  five  hundred  dol- '« ™P.o"'"o , 
lars,  to  be  recovered  by  the   superintendent  on  motion  in  the  '"P*=™"'"'^''^'- 
superior  court  of  Wake  county,  in  like  manner  as  in  case  of 

clerks  failing  to  make  returns  to  the  comptroller;  and  the  cer- 
tificate of  the  superintendent  shall  be  jJrimd  facie  evidence  of 
the  default. 


Sect.  19.  12  Ire.  194. 

33* 


390 


MARRIAGE. 


[Chap.  68. 


CHAPTER    67 


Pennlty,  and 
liability  for 
dam^iges,  for 
not  killing  a 
dog  bitten  by 
a  inad  dog. — 
E.  S.  c.  70. 


MAD  DOGS. 

Penalty,  and  liability  for  damages,  for  not  killing  a  dog  bitten  by  a  mad  dog. 

1.  Whenever  the  owner  of  any  dog  .shall  know,  or  have  good 
reason  to  believe,  that  his  dog,  or  any  dog  belonging  to  his 
slave  or  other  person  tinder  his  control,  has  been  bitten  by  a 
mad  dog,  and  shall  neglect  or  refuse  immediately  to  kill  the 
same,  he  shall  forfeit  and  pay  the  sum  of  fifty  dollars  to  him 
who  will  sue  therefor;  and  the  offender  shall  be  further  liable 
to  pay  all  damages  which  may  be  sustained  by  any  one  in  his 
property  or  person,  by  the  bite  of  any  dog,  belonging  as  afore- 
said. 


Sect.  1.  10  Ire.  79. 


CHAPTER    68. 


MARRIAGE. 


Section 

1.  Rites  of  matrimony  celebrated  by  min- 

isters of  the  gospel  and    justices. 
Fee. 

2.  Marriage,  license  for,  issued  by  clerk 

of  county  court,  upon  bond,  &o. 

3.  Banns  of,  published  by  ministers  and 

readers, 

4.  Certificate  of,  to  be  returned  to  clerk, 

and  recorded. 
6.  Penalty  on  minister,  justice,  or  clerk 
for  neglect  of  duty.    To  be  sued  for 
by  county  solicitor. 

6.  On  ministers  and  clerks,  for  marry- 

ing, or  issuing  license,  contrary  to 
law. 

7.  Marriages  between  whites  and  colored 

persons,  void. 

8.  Penalty  for  marrying  whites  to  Indian 

or  colored  persons. 


Eites  of  matri- 
mony cele- 
brated by  min- 
isters and  jits- 
tices. 

Fee.— K.  S.  c. 
71,  8.  1. 


Section 
9.  JIarriagevoid,  between  nearer  kindred 
than  first  cousins. 

10.  Estates  of  females  under  fifteen,  mar- 

rying without  consent,  secured  for 
her  and  issue. 

11.  Duty  of  attoi-ney-general,  &c.,  to  file 

a  bill,  and  have  trustee  appointed  of 
her  estate.  Trustee  to  give  bond. 
Compensation  of  Persons  having 
her  estate,  to  hold  it  for  trustee. 
Fees  of  attorney-general  and  solicitor. 

12.  How  to  obtain  license  when  parents 

or  guardian  reside  out  of  the  State. 

13.  Pen.alty  on  clerks,  ministers,  and  jus- 

tices for  issuing  license  and  marrj-- 
ing  females  under  fifteen  years. 

14.  Females  under   fourteen  and   males 

under  sixteen,  incapable  of  marry- 
ing. 


1.  Ordained  ministers  of  the  gospel  of  every  denomination, 
and  iusticcs  of  the  peace,  may  solemnize  the  rites  of  matri- 
mony, according  to  the  rites  and  ceremonies  of  their  respective 
churches,  and  the  rules  in  this  chapter  prescribed;  and  the 
ministers  may  take  two  dollars  for  every  couple  by  them  mar- 
ried. 


Chap.  68.]  marriage.  391 

2.  The  clerk  of  the  county  court  of  the  county  in  which  the  Mnrriage  li- 
feme  resides,  shall  issue  a  license  for  the  marriage  of  any  per- ck'rk  oi^ouJiy 
sons  not  in  this  chapter  prohibited,  to  any  person  applying  for  court,  upon 
the  same,  directed  to  any  ordained  minister  or  justice  of  the  n'^tli^'  ^'  °' 
peace  ;  the  clerk  first  taking  bond  with  sulficient  security  in  the 

sum  of  one  thousand  dollars,  payable  to  the  State  of  North 
Carolina,  conditioned  that  there  is  no  lawful  cause  to  obstruct 
the  marriage  ;  which  bond  shall  be  filed  in  office,  and  may  be 
put  in  suit  and  recovered  by  the  person  aggrieved  by  the  issu- 
ing of  the  license,  or  by  the  marriage. 

3.  Every  ordained  minister  of  the  gospel,  or  person  appointed  .?''""?  °'''  P'?''- 
by  any  church  as  a  reader,  may  publish  the  banns  of  matrimony  istersari^  read- 
between  any  two  persons  requesting  the  same,  on  three  several  yf '"g-  ^-  °- 
Sundays    in    the    congregation,  immediately   after  or  during     '^' 
divine  worship  ;  and  shall  give  a  certificate  of  such  publication 

when  demanded,  directed  to  any  ordained  minister  or  justice 
of  the  peace,  and  may  take  for  such  service  forty  cents.  Pw- 
vided,  that  the  people  called  Quakers,  may  retain  their  peculiar 
rules  and  privileges  in  solemnizing  the  rites  of  matrimony  in 
their  own  church. 

4.  Every  justice  of  the  peace  or  minister  of  the  gospel,  who  Certificate  of, 
may  solemnize    the    rites    of   matrimony,  shall,  within   three  fo  de,^" 
months  thereafter,  transmit  to  the  clerk  of  the  county  court  of  rooorded.- 
the  county  wherein  such  marriage  may  have  been  celebrated,  ^'*''"' ''■  ^*'''^' 
a  certificate  in  writing  of  the  same,  indorsed  on  the  license  or 
otherwise ;  wiiich  certificate  properly  indorsed,  the  clerk  shall 

record  in  a  book  kept  for  the  purpose,  within  one  month  after 
its  reception ;  and  such  record  shall  be  deemed  primd  facie 
evidence  of  the  marriage. 

5.  Any  minister,  justice  of  the  peace,  or  clerk  of  the  county  Penalty  on 
court,  neglecting  to  discharge  the  duties  imposed  by  the  pre-  dceTordCTk 
ceding  section,  shall  pay  a  penalty  of  twenty-five  dollars  in  for  neglect  of 
each  case,  to  be  recovered  on  motion  to  the  county  court  after  sued VOTb'y 
five  days'  notice,  by  the  county  solicitor,  whose  duty  it  shall  ''™"'>'  ^o""- 
be  to  enforce  the  penalty  ;  one  half  whereof  shall  be  applied  to  84X2^°°' "' 
the  use  of  the  school  fund,  and  the  other  half  to  the  use  of  the 

poor  of  the  county. 

6.  If  any  minister,  or  justice  of  the  peace,  shall  knowingly  0"  "'"'f*^" 

iz-vln  +,^„^+K„,.  ;  i  •  J  "^  .  """■"'ti'j'  and  clerks,  for 

join  togetliei  in  matrimony  any  two  persons,  in  any  other  way  marrying,  or 
or  manner  than  by  this  chapter  directed  ;  or  if  any  clerk  shall  ■««"'»? '''^ense , 
knowingly  issue  any  marriage  license  in  any  way  or  manner  h°w.— K.  s.  c. 
other  than  by  this   chapter  directed,  the   person  so   offending  "'  '•  *' 
shall  forfeit  and  pay  for  every  such  offence  two  hundred  dollars'^; 
one  half  to  the  use  of  him  who  will  sue  for  the  same,  and  the 
other  half  to  the  use  of  the  county  wherein  the  offence  is  com- 
mitted ;  and  such  person  shall  be  likewise  liable  to  be  sued  by 
the  person  grieved. 

7.  All  marriages,  since  the  eighth  day  of  January,  eighteen  Ji:>rriages  be- 
hundred  and  thirty-nine,  and  all  marriages  in  future,  between  amUVec  ne- ' 
a  white  person  and  a  free  negro,  or  free  person  of  color,  to  the  f^'f'  '"Ji'-"" 
third  generation,  shall  be  void.  ^^^*'  '•  ^*' 


392 


[Chap.  68. 


Penalty  for  g.    No  minister  of  tlie  gospel  or  justice  of  the  peace  shall 

whitJs'toln-     marry  a  white  person  with  an  Indian,  negro,  or  free  person  of 
dians,  or  free    color,  to  the  third  generation,  knowing  them   to  be  so,  upon 
""     "°  ~^      pain  of  forfeiting  and  paying  for  every  such  offence  one  hun- 
dred dollars. 

9.  All  marriages  contracted  after  the  twenty-seventh  day  of 
December,  eighteen  hundred  and  fifty-two,  and  all  marriages 
in  future,  between  persons  nearer  of  kin  than  first  cousins, 
shall  be  void. 

10.  When  any  person  shall  marry  an  infant  female  under 
the  age  of  fifteen  years,  except  in  the  case  where  her  father  may 
be  living  and  shall  have  assented  to  the  marriage  in  writing, 


neji^'oes. — R.  S 
c.  71,  s.  6. 

Marriages  void, 
by  reason  of 
kindred. — 
1S52,  c.  75. 


Estates  of  fe- 
males under 
fifteen,  marr; 
ing  without 

cured"fOTher    the  person  so  oftending  shall  acquire  no  interest  in  any  of  the 
and  issue.— R.  property  or  estate  of  such  female  then  owned  and  possessed  by 
S.  c.  71,  s.  7.     j^^^^  ^^  j^^  which  she  may  then  have  any  interest,  vested  or  con- 
tingent: but  the  same  shall  be  vested  in   and  held  by  such 
trustee  or  trustees  as  the  court  of  equity  may  appoint,  who 
shall  have  full  power  to  take  all  such  estate  into  their  posses- 
sion, and  to  sue  for  and  recover  the  same  in  their  own  names 
as  trustees ;  and  they  shall  hold  such  estate  and  property  to, 
upon,  and  for  the  following  uses  and  trusts,  namely  :  to  the  sole 
and  separate  use  of  the  female  during  the  marriage,  free  from 
all  control  and  dominion  of  her  husband.     And,  upon  the  ter- 
mination of  the  marriage,  if  she  shall  be  the  survivor,  the  trus- 
tees  shall  convey  the  said  estate   and  all  the   profits  thereof 
unexpended    to  the  said  female,  absolutely  and  free    of   all 
trust.     But  if  she  shall  not  be  the  survivor,  they  shall  convey 
the  said  estate  and  profits  to  such  children  as  she  may  leave 
surviving  her,  and  to  the  issue  of  such  children  as  may  have 
died  in  her  lifetime,  leaving  issue,  the   issue  to  stand  in  the 
place  of  their  parent,  and  take  such  share  as  the  parent  would, 
if  living.     And  in  default  of  such  children  or  issue,  they  shall 
convey  the  said  estate  and  profits  to  such  persons  as,  according 
to  the  nature  of  the  estate,  would  have  been  her  distributees 
or  heirs  at  law,  if  she  had  died  unmarried.     And  the  said  hus- 
band shall  not  be  permitted  to  hold  or  use,  sell  or  dispose  of, 
any  part  of  such  estate ;  and  every  sale  or  disposition  made  by 
him  of  such  estate,  shall  be  void  ;  nor  shall  he,  in  case  he  sur- 
vive his  wife,  be  entitled  to  administration  on  her  estate,  or  to 
any  distributive  share  thereof,  or  to  any  right  of  curtesy  therein. 
Duty  of  attor-       n     xt  shall  be  the  duty  of  the  attorney-general  and  soUcitors, 
aaSiwrs    within  whose  circuit  such  female  may  have  resided  previous  to 
to  file  a  bill,      j^gr  marriage,  to  file  a  bill  in  equity  in  the  name  of  the  State 
te"e'^ap7o1ntcd"  against  such  husband  and  wife,  and  every  person  who  may 
of  her  estate,     jjj^yp  j,,  hand  any  of  her  estate,  in  which  by  the  marriage  the 
husband  would  or  might,  during  the   coverture,  acquire  any 
property,  right,  or  interest,  in  order  that  a  trustee  may  be  ap- 
pointed to  take  charge  of  the  property  and  estate;  who  shall 
Trustee  to  give  „ive  bond  witli  two  or  more  good  sureties  in  such  sum  as  the 
compel"  court  shall  deem  proper,  payable  to  the  State  of  North  Caro- 
lina, for  the  faithful  performance  of  the  trusts  reposed  in  him, 


Chap.  69.]  members  of  congress.  393 

and  for  accounting  for  all  the  profits  of  the  estate  intrusted  to 

him,  and  shall  be  allowed   a  reasonable  compensation  for  his 

services,  and  may  be  removed  for  sufficient  cause,  and  another 

or  others  appointed  in   his   stead.     And   any  person   having  Persons  iiaving 

estate  in  his  hands  belonging  to  such  feme  shall  hold  the  same,  ll!;!',''?.*'!^'','° 

,,,         ,.  c      ti  1  ,..  rt  naiti  It  lortrus- 

agamst  the  claim  ot  ail  persons  whatever,  for  the  use  of  such  tee. 
trustee  as  may  be   appointed.     The  attorney-general  and  so-  L®j!!„enei-a7' 
licitors,  for  such  services,  shall  be  allowed  reasonable  fees,  to  fiiui  miicitor. 
be  paid  out  of  the  estate  of  ihefeme,  or  otherwise,  as  the  court  ~\  ^'  "•  '^'' 
may  direct. 

12.  In  all  cases  when  a  license  is  applied  for  to   marry  a  Ijow  to  obtain 
female  whose  parents  or  guardian  reside  without  the  State,  the  parents  ot**^" 
person  applying  shall  produce  to  the  clerk  of  the  county  court,  guardian  reside 
or  any  other  person  legally  authorized  to  grant  license  to  marry,  s'^atel^'^R.  g.  c. 
a  certificate  in  writing  from  under  the  hand  of  the  parent  or  ^h  s-  9- 
guardian  of  the  said  female,  (as  the  case  may  be,)  stating  she 

has  arrived  to  the  full  age  of  fifteen  years,  and  if  under  that 
age  that  she  has  leave  to  marry;  which  certificate  shall  be 
filed  in  the  clerk's  office  in  the  county  where  the  license  was 
obtained. 

13.  If  any  clerk,  or  other  person,  authorized  to  issue  ficense  Penalty  on 
to  marry,  shall  issue  any  license  for  the  m.arriage  of  any  female  tirwlid ''us- 
under  the  age  of  fifteen  years,  the  said  female  not  being  per-  tices.'for  issu- 
mitted  in  writing  to  marry,  as  in  this  chapter  directed,  and  the  mfrl-yi'irMe-"^ 
said  clerk  or  other  person  knowing  thereof;  or  if  any  minister  males  under 
or  justice  of  the  peace  shall  marry  such  female,  with  knowledge  K'^'t'TrTT 
that  she  is  not  in  writing  permitted  to  marry ;  or  if  any  such  lO-    '    '     '   ' 
clerk  or  other  person  aforesaid  shall  issue  any  license,  contrary 

to  the  true  intent  and  meaning  of  the  preceding  section  ;  every 
such  minister,  justice  of  the  peace,  clerk,  or  other  person,  so 
offending,  shall  forfeit  and  pay  one  thousand  dollars. 

14.  Females  under  the   age  of  fourteen  years,  and  males  '^em:(\e^  under 
under  the   age   of  sixteen,  shall  be  incapable  of  contracting  Safes  und«-'^ 

miarriage.  sixteen,  inca- 
.  pable  of  mar- 
rying. 

Sect.  1.  IT7;o  authoiized  to  marry,  13  Ire.  2S9.  What  form  necessary,  2  Ire.  346, 6  lb. 
23.  Who  may  lie  married:  not  while  and  colored,  5  Ire.  201,  3  lb.  455;  nor  idiots,  6  Ire. 
4S7,  2  Ire.  Eq.  i70;  persons  divorced,  5  Ire.  635;  slaves,  2  D.  &  B.  177,  1  Jones,  Eq.  35. 
//ow  marriage  proved,  1  Dev.  337.     Declaration  against  minister,  5  Ii-e.  639. 

Sect.  10.   1  Ire.  Eq.  232. 


CHAPTER    69. 

MEMBERS  OF  CONGRESS. 


Section 

1.  Senators  in  congress  chosen  by  Gen- 

eral Assembly. 

2.  How  commissioned. 

3.  Congressional  districts  allotted. 


Sectiox 

4.  Time  and  manner  of  conducting  elec- 

tions. 

5.  Vacancies     in    representation,     how 

filled. 


MEMBERS    OF  CONGRESS. 


[Chap.  GO. 


Section 

6.  Returns  of  election,  how  nijide. 

7.  Sheriff  to  ascertain  number  of  votes 

and  mal;c  two  statements. 

8.  Places  for  comparing  polls  by  return- 

ing officers.     Certificate  of  election 


Section 

given  by  officers  to  person  elected. 
Provision  in  ease  of  n  tie  vote. 
9.  Representatives  commissioned  by  gov- 
ernor. 

10.  Pay  of  officer  for  comparing  polls. 

11.  Voting  more  than  once,  penalty  for. 


Senators  in 
congress  chos- 
en liy  General 
Assembly. —  R. 
S.  c.  72,  s.  1.— 
Const.  U.  S. 
art.  1,  s.  3. 

How  commis- 
sioned.— R.  S. 
C.  72,  s.  2. 


districts  allot- 
ted.—R.  S.  c. 
72,  s.  3.— 1852. 
C.  21,  s.  1.— 
Const.  U.  S. 
art.  1,  s.  2. 


Time  and  man- 
ner of  conduct- 
ing elections. — 
R.  S.  0. 72,  s.  4. 


Vacancies  in 
representation, 
how  filled.— K, 
S.c.72,s.! 


1.  WiiEXEVER  a  senator  in  the  congress  of  the  United  States 
is  to  be  chosen,  the  General  Assembly,  at  such  time  during  their 
session  as  they  shall  appoint,  shall  elect  such  senator  vica  voce, 
by  a  majority  of  the  joint  votes  of  both  houses,  under  the  in- 
spection of  two  members  from  each  house. 

2.  The  senator  elect  shall  obtain  a  certificate  of  his  elec- 
tion, signed  by  the  speakers  of  the  two  houses,  and  shall  be 
commissioned  by  the  governor,  under  the  seal  of  the  State. 

3.  For  the  purpose  of  electing  representatives  in  the  Con- 
gress of  the  United  States,  the"  State  shall  be  divided  into 
eight  districts,  as  follows,  namely :  —  The  first  district  shall  be 
composed  of  the  counties  of  Currituck,  Camden,  Pasquotank, 
Perquimans,  Gates,  Chowan,  Hertford,  Northampton,  Halifax, 
Martin,  Bertie,  Washington,  and  Tyrrell ;  the  second  district, 
of  the  counties  of  Hyde,  Beaufort,  Pitt,  Craven,  Jones,  Lenoir, 
Wayne,  Greene,  Edegcombe,  Onslow,  and  Carteret;  the  third 
district,  of  the  counties  of  New-Hanover,  Brunswick,  Colum- 
bus, Bladen,  Sampson,  Cumberland,  Robeson,  Duplin,  and 
Eichmond ;  the  fourth  district,  of  the  counties  of  Wake, 
Franklin,  Warren,  Granville,  Orange,  Nash,  and  Johnston  ;  the 
fifth  district,  of  the  counties  of  Person,  Caswell,  Alamance, 
Chatham,  Randolph,  Guilford,  Moore,  and  Montgomery;  the 
si.xth  district,  of  the  counties  of  Stokes,  Forsyth,  Rockingham, 
Davidson,  Davie,  Yadkin,  Sarry,  Iredell,  Alexander,  and  Ashe; 
the  seventh  district,  of  the  counties  of  Catawba,  Gaston,  Lin- 
coln, Mecklenburg,  Rowan,  Cabarrus,  Union,  Anson,  Stanly, 
and  Cleaveland;  the  eighth  district,  of  the  counties  of  Wilkes, 
Watauga,  Caldwell,  Burke,  Rutherford,  McDowell,  Hender- 
son, Buncombe,  Yancy,  Haywood,  Macon,  Cherokee,  Jackson, 
and  Madison  ;  each  of  which  districts  shall  be  entitled  to  elect 
one  representative  in  the  congress  of  the  United  States. 

4.  The  election  shall  be  held  at  the  same  places  as  arc  pre- 
scribed for  holding  elections  for  members  of  the  General 
Assembly,  on  the  first  Thursday  in  August  immediately  suc- 
ceeding the  termination  of  each  congress;  and  shall  be  con- 
ducted by  the  sheritFs,  or  by  other  persons  ajjpointed  therefor, 
in  like  manner  as  elections  for  members  of  the  General  As- 
sembly;  except  that  the  inspectors  of  the  election  shall  be 
sworn  to  act  with  justice  and  impartiality;  and  each  voter 
shall  give  his  suffrage  only  in  the  county  wherein  he  resides. 

5.  If  at  any  time,  after  the  expiration  of  any  Congress  and 
before  another  election  ;  or  if  at  any  time  after  any  election, 

'.  there  shall  be  a  vacancy  in  the  rejirescntation  in  congress,  the 
governor  shall  issue  a  writ  of  election,  and  by  proclamation 


Chap.  69.]  members  of  congress.  395 

shall  require  the  voters  to  meet  in  their  respective  counties,  at 
such  time  as  may  be  appointed  therein,  and  at  the  places 
established  by  law,  then  and  there  to  vote  for  a  representative 
in  congress  to  fill  the  vacancy,  and  the  election  shall  be  con- 
ducted in  like  manner  as  regular  elections. 

6.  The  polls  of  election  shall  be  ascertained  by  the  inspec-  Returns  of  elec- 
tors,  or   other  persons   holding  the  election,  and  the  returns  n™Je'.'^K.  s. 
thereof  shall  be  made  to  the  sheriff,  or  other  returning  officer,  c.  72,  s.  6. 

in  like  manner,  time,  and  place,  and  under  the  same  penalties 
for  omission,  recoverable  in  like  manner  and  for  like  uses,  as 
in  elections  for  members  of  the  General  Assembly. 

7.  The  returning  officer,  upon  receiving  the  returns,  shall,  at  Sheriff  to  as- 
the  court  house,  in  the  presence  of  a  majority  of  such  inspec-  of'votes""™ii""^ 
tors  as  may  have  carried  the  polls,  cast  up  the  votes  and  make  make  two 
two  correct  statements  of  the  number  of  suffrages  given  at  |.|^s';"f"2^sT7. 
such  election  for  each  candidate ;  one  of  which  being  duly 
certified  by  him,  shall,  with  the  poll  books,  be  filed  by  the  in- 
spectors in  the  office  of  the  court  of  pleas  and  quarter-sessions 

of  the  county,  and  the  other  shall  be  retained  by  the  sheriff  or 
other  returning  oificer,  with  which  he  shall  attend  on  the  day 
and  at  the  places  mentioned  in  the  next  section. 

8.  The  sheriffs,  or  other  returning  officers  of  the  counties  of  P'«?«s 'o"' co™; 
each  district,  shall  meet  on  the  Thursday  next  after  each  elec-  retuining  offi- 
tion,  at  the  following  places  in  the  several  districts,  for  the  S,'^''!'^^  , 
purpose  of  comparing  the  polls,  namely  :  In  the  first  district,  at  election  given 
the  court  house  in  the  county  of  Bertie  ;  in  the  second  district,  by  officers  to 
at  the  town  of  Newbern,  in  the  county  of  Craven ;  in  the  third 

district,  at  the  court  house  in  the  county  of  Bladen  ;  in  the 
fourth  district,  at  Louisburg,  in  the  county  of  Franklin;  in 
the  fifth  district,  at  the  town  of  Graham,  in  the  county  of  Ala- 
mance ;  in  the  sixth  district,  at  the  court  house  in  the  county 
of  Yadkin  ;  in  the  seventh  district,  at  the  town  of  Charlotte,  in 
the  county  of  Mecklenburg ;  and  in  the  eighth  district,  at  the 
town  of  Asheville,  in  the  county  of  Buncombe.  Provided  al- 
ways, that  if  any  accident  may  prevent  any  returning  officer 
from  meeting  on  the  day  aforesaid,  the  returns  shall  be  re- 
ceived on  the  day  following;  and  the  returning  officer,  failing 
to  attend  as  required  at  the  time  and  place  above  mentioned, 
shall  forfeit  and  pay  one  thousand  dollars,  to  be  recovered  for 
the  use  of  the  State,  in  any  court  of  law.  And  when  the 
returning  officers  shall  be  convened,  the  poll  for  the  several 
counties  shall  be  examined  and  compared  by  them,  in  the 
presence  of  three  justices  of  the  peace,  summoned  by  the  re- 
turning officer  of  the  county  where  they  shall  meet;  and  a 
certificate  under  the  hands  of  said  returning  officers  shall  be 
given  to  the  candidate,  for  whom  the  greatest  number  of  votes 
shall  have  been  given  in  said  district.  But  if  two  or  more  Provision  in 
candidates  shall  have  an  equal  number  of  votes,  the  returning  vote.— i!.  s.  c. 
officers  shall  determine  which  of  them  shall  be  the  rcpresenta-  "2.  s.  s.— 1862, 
five ;  and  if  no  decision  is  by  them  made,  they  shall  determine  •■''■• 
the  same  by  drawing,  in  like  manner  as  the  grand-jury  is 
drawn. 


396 


MILITIA. 


[Chap.  70. 


Eepresentn- 
tives  commis- 
sioned by  tiov. 
— R.  S.  c.  72, 
e.  9. 


Pay  of  return- 
ing officer  for 
comparing 
polls.— R.  S.  c. 
72,  s.  10. 


Voting  more 
than  once,  pen- 
alty for.— K.  S. 
c.  72,  s.  0. 


9.  Every  person  duly  elected  a  representative,  upon  obtain- 
ing a  certificate  of  his  election,  shall  procure  from  the  governor 
a  commission,  certifying  his  appointment  as  a  representative 
of  the  State,  whicli  the  governor  shall  issue  on  such  certificate 
being  produced. 

10.  Every  sheriff  or  other  returning  officer  holding  such  elec- 
tions, shall  be  allowed  two  dollars  and  a  half  for  every  thirty 
miles  travelling  to  and  returning  from  the  place  of  comparing 
the  polls  in  the  district ;  and  the  same  sum  for  every  day  he  shall 
necessarily  attend  for  the  purpose  of  comparing  the  polls,  and 
also  the  amount  of  his  ferriages;  which  shall  be  paid  by  the 
treasurer  on  affidavit  of  the  returning  officer. 

11.  If  any  person  shall  vote  more  than  once  in  any  such 
election,  he  shall  forfeit  and  pay  one  hundred  dollars,  one  half 
to  him  who  will  sue  for  the  same,  and  the  other  half  to  the 
use  of  the  county  wherein  the  offence  was  committed. 


CHAPTER    70. 


MILITIA. 


Section 

I.  Who  to  be  enrolled,  and  how  provided. 

Proviso,  as  to  persons  over  thirty-five 
years  of  age. 

2.  Wliat  persons  exempted  from  duty. 

3.  Members  of  fire  companies,  also  ;  and 

persons  of  conscientious  scruples. 

4.  Officers  to  enroll  and  make  return  of 

exempts. 
B.  Free  negroes  not  enrolled. 

6.  Persons  enrolled  to  equip  themselves. 

Forfeitures  for  neglect  to  equip. 

7.  How  infantry  to  be  divided. 

8.  Regiments,   brigades,   and    divisions, 

how  distinguished. 

9.  Officers  of  infantry,  their  grade  and 

how    appointed.     Adjutant-general 
appointed.      Governor  may  appoint 
foxir  aids-de-camp. 
10.  Uniform  of  officers. 

II.  Officers   to   hold   commissions   three 

years  and  equip  within  one.  Pen- 
alty. Major-generals,  and  all  field 
officers,  how  elected  and  commis- 
sioned. How  to  resign,  and  who 
notified  of  vacancies,  and  by  whom. 
How  officers  of  companies  elected. 

12.  To  give  notice  of  their  absence. 

13.  To  deliver  to  their  successors  money 

or  papers. 

14.  Rules  of  discipline.    Adjutant-general 


Section 

to  distribute  McComb's  tactics,  and 
how. 
IB.  Captains'     districts,    how    laid    off". 
Boundary  lines  in  regiments  of  same 
county,  how  altered. 

16.  Regulations  as  to  company  musters. 

17.  Company  courts-martial.   How  to  pro- 

ceed. Appeal  allowed.  Execution 
from  courts-martial ;  how  and  to 
whom  issued.  Penalty  on  sheriff 
or  constable  for  neglect. 

18.  Company  musicians,  how  appointed; 

their  privileges. 

19.  Road  hands  not  to  be  ordered  out  OQ 

muster  day. 

20.  Captains  to  make  returns,  when. 

21.  Regimental     or     battalion     musters. 

Where  held.  Duty  of  colonel.  I'en- 
alty  for  neglect  of  duty. 

22.  Penalty  on  officers  failing  to  attend 

reviews  or  musters. 

23.  Commandants  of  regiments,  &c.,  to 

give  notice  of  reviews,  &c. 

24.  Commissioned   officers  of  regiments, 

&c.,  to  exercise  day  before  review. 

Penalty  for  failure. 
2B.  Penalties  on  officers  and  privates  for 

misbehaving. 
20.  Persons  on  muster  ground  failing  to 

do  duty,  arrested. 


Chap.  70.] 


3^7 


Section 

27.  Attending  musters,  exempt  from  ar- 

rest in  civil  cases.  Not  to  pay  tolls 
or  ferriages. 

28.  Parents,  &c.,  liable  for  fines. 

29.  Kegimeiital  and  battalion  courts-mar- 

tial.   Their  power  and  duties. 

30.  Duty  of  pay-masters. 

31.  Officer's  oatli  on  court-marti.al. 
82.  Proceedings  against  delinquents. 

33.  Courts-martial  may  adjourn. 

34.  Duties  of  officers  as  to  fines.    Penalty 

for  default  on  captains. 

35.  Returns    by   commandants    of   regi- 

ments. 

36.  Duties  of  generals  as  to  reviews. 

37.  Returns  by  brigadier  and  major-gen- 

erals. 

38.  Penalty  on  general  officer,  &c.,  failing 

to  review  or  muster;  or  to  mal^e  re- 
turns, or  be  equipped.  No  officer  to 
be  deprived  of  his  commission  with- 
out trial. 

39.  Duty  of  adjutant-general. 

40.  In  certain  cases  returns  and  orders 

sent  through  post-office. 

41.  Governor  may  remit  fines  and  pen- 

alties. 

42.  Regiments  of  cavalrj',  how  formed,  &c. 

43.  Troops  of  caviilry,  when  to  muster, 

and  how  returns  made.  Who  to 
command  when  mustering  with  in- 
fantry. 

44.  Field  officers  of  cavalry  to  review  .and 

make  returns. 

45.  Cavalry  coui'ts-martial  to  be  held. 

46.  Fines  of  cavalry  officers  and  privates, 

same  as  in  infantry. 

47.  Cavalry  fines,  how  appropriated. 
43.  Duties  of  adjutants  of  regiments. 

49.  Certain  sections  of  this  chapter  to  ap- 
ply to  cavalry. 
60.  Commissions  in  cavalry. 

51.  Volunteer  companies  of  artillery,  &c., 

may  be  formed, 

52.  May  choose  their  uniform.    To  be  »m- 

der  the  commander  of  the  regiment, 
and  do  duty,  &o. 

53.  Regiments    of    volunteer    companies 

may  be  formed.  Field  officers  of, 
how  chosen. 

54.  Captains,    lieutenants,    non-commis- 

sioned officers,  how  elected  or  ap- 
pointed. 

55.  Company  to   muster   once  in  three 

months.  May  make  rules  for  their 
government. 

56.  Officers    of   volunteer   regiments    to 

make  returns. 


Section 

67.  Volunteers,  not  to  return  to  infantry, 
but  by  permission,  &o.  Shall  serve 
in  infantry,  till  they  equip. 

58.  Volunteer  regiments  to  be  reviewed. 

59.  Vacancies  in  field  officers  of,  how  filled. 

60.  Certain  sections  concerning  infantry, 

to  apply  to  artillery,  &c. 

61.  General  courts-martial,  how  appointed 

and  held. 

62.  Officers  of,  how  selected. 

63.  Bank  of  the  officers. 

64.  Officers  for,  regularly  detailed. 
66.  How  detailed. 

66.  Courts-martial,  how  constituted. 

67.  Officers  of,  how  to  rank;  to  be  sworn. 

68.  Witnesses,  how  summoned. 

69.  How  sworn. 

70.  Rules  for  courts-martial.    Penalty  on 

officers,  for  not  attending. 

71.  Duty  of  judge  advocate. 

72.  Proceedings  against  officers  arrested, 

refusing  to  attend. 

73.  Perjury  before  courts-martial. 

74.  For  what  conduct  officer  cashiered. 

75.  Detachments    of  militia  for    United 

States  service. 

76.  Substitutes  received. 

77.  Vacancies  in  detachments,  under  rank 

of  field  officers,  how  supplied. 

78.  A  militia-man  after  one  tour,  exempt, 

&e. 

79.  Penalty  for  neglecting  duty  when  or- 

dered out  by  civil  authority. 

80.  Seven  justices  may  call  out  militia  in 

invasions  or  insurrections. 

81.  Duty  of  officer  on  such  requisition. 

82.  Commanding  officer  called  out  to  notify 

his  superior.  Superior  to  notify  the 
governor. 

83.  Three  justices  may  order  out  militia 

to  suppress  outlawed,  or  runaway 
slaves. 

84.  Pay  of  militia  in  service. 

85.  Punishment  for  not  appearing  on  call, 

&c. 

86.  Punishment  for  desertion. 

87.  Field  officers  of  volunteer  regiments 

in  service  of  United  States,  how  and 
when  elected. 

88.  Election,  when  and  how  conducted. 
69.  Certificate  of  election  furnished  field 

officers  by  captains.  Returns,  how 
made  when  regiments  rendezvous  at 
different  places. 

90.  When  there  is  a  tie  in  elections,  gov- 

ernor to  select. 

91.  Volunteer   companies,   how  incorpo- 

rated. 


34 


398 


[Chap.  70. 


Proviso  as  to 
persons  over 
thirty-five 
years  of  »ge.- 
iS4S,  c.  58,  ». 
1,2. 


Section  Section 

92.  Privates,  by  ten  years'  service  in,  ex-      91.  Anns  how  procured,  when  brigadier- 

empt  from  further  duty.  general  dead  or  absent. 

93.  Commissioned  officers  by  eight.  95.  Private  acts  in  relation  to  militia,  not 

repealed. 

Who  to  be  en-  1.  All  free  white  men  and  white  apprentices,  citizens  of 
™U«d, andhow  ^jjjg  State,  or  of  the  United  States  residing  in  this  State,  who 
^'.TtI^s.  1."  are  or  shall  beef  the  age  of  eighteen  and  under  the  age  of 
forty-five  years,  shall,  as  soon  as  practicable,  be  severally  and 
respectively  enrolled  in  the  militia  of  this  State  by  the  captain 
or  commanding  officer  of  the  infantry  company,  within  the 
bounds  of  whose  district,  (to  be  allotted  him  as  hereinafter 
directed,)  such  citizen  shall  reside ;  and  at  all  times  every  cap- 
tain, or  commanding  officer  of  any  company,  shall  enroll  every 
such  citizen,  except  as  hereinafter  exempted,  and  also  those 
between  the  ages  aforesaid  and  not  exempt  by  law,  who  may 
•  from  time  to  time  come  to  reside  within  the  bounds  of  his  dis- 
trict and  remain  therein  thirty  days  ;  and  he  shall  without 
delay  notify  such  citizen  of  the  enrolment,  by  a  proper  non- 
commissioned officer  of  the  company,  by  whom  the  notice 
may  be  proved.  Provided,  Iioicevcr,  that  no  person  so  en- 
rolled shall  be  required  to  perform  military  service  in  times  of 
peace  by  way  of  drill,  mustering,  training,  or  disciplinary  exer- 
cise after  he  shall  have  attained  to  the  age  of  thirty-five  years, 
if  he  shalh  appear  before  the  court-martial  of  the  regiment  to 
which  he  belongs,  and  make  oath  that  he  has  attained  the  said 
age,  and  shall  obtain  from  the  colonel  commandant  or  presid- 
ing officer  of  said  court-martial  a  certificate  in  writing  which 
shall  exempt  him  from  the  performance  of  military  duty,  ex- 
cept in  times  of  war,  insurrection,  or  invasion. 
Who  exempted  2.  The  vice-president  of  the  United  States,  the  officers, 
|'»n^  ^'i>fy--^  judicial  and  executive,  of  the  United  States,  the  members  of 
1838,  c.'so;  '  both  houses  of  congress  and  their  respective  officers ;  the 
1^"'  "■  3e,  s.  judoes  of  the  supreme  and  superior  courts  of  law,  and  justices 
S.9.  '"■  ''of  the  peace,  counsellors  of  State,  the  secretary,  comptroller, 
treasurer,  the  governor's  private  secretary,  attorney-general, 
solicitors,  the  clerks  of  the  several  courts  of  record,  the  State 
printer,  high  sheritls  of  the  several  counties,  physicians  and 
surgeons,  ordained  ministers  of  the  gospel  of  every  denomina- 
tion, all  custom-house  ofiicers,  postmasters,  and  stage-drivers 
or  mail  carriers,  employed  in  the  care  and  conveyance  of  the 
mail  to  the  post-oiiices  of  the  United  States,  all  ferrymen  em- 
ployed on  any  ferry  of  a  public  road,  jirovidcd  the  same  shall 
not  exceed  one  superintendent  and  one  other  to  each  ferry,  all 
millers  of  public  mills,  provided  that  this  exemption  shall  ex- 
tend,  as  to  each  mill,  to  one  person  only  subject  to  do  military 
duty,  whose  occupation  and  daily  employment  it  is  to  attend 
and  perform  the  duty  of  a  public  miller,  all  inspectors  of  produce, 
all  branch  and  licensed  pilots,  all  mariners  actually  employed 
in  the  sea  service  of  the  United  States,  or  of  any  merchant,  all 
officers  and  students  of  the  university  and  all  other  semiiiaries 
of  learning  within  the  State,  the  lock  keepers  on  the  dismal 


Chap.  70.]  militia.  399 

swamp  canal,  wardens  of  the  poor,  superintendents  of  com- 
mon schools,  members  of  the  committee  of  examination  of 
teachers  of  common  schools,  teachers  and  pupils  of  common 
schools  wliile  engaged  as  such,  and  patrollers,  shall  be  ex- 
empted from  military  duty.  Provided  always,  that  nothing 
herein  contained  shall  be  so  construed  as  to  exempt  any  per- 
son from  performing  duty,  in  case  of  invasion  or  insurrection 
in  the  State. 

3.  The  members  of  the  several  fire  companies,  so  long  as  g|.^"'^,^^^^°''. 
they  shall  continue  such,  that  may  be  established  in  the  State,  exemptea!""'* 
shall  be  exempted  from  all  militia  duty,  except  in  time  of  war, 
invasion,  or  insurrection.     The  captain  of  every  fire  company, 

once  a  year,  shall  make  a  regular  return  to  the  colonel  com- 
mandant of  the  regiment,  by  the  fifteenth  day  of  October, 
(under  the  penalties  imposed  on  captains  of  militia  companies 
for  failure  of  making  return,)  in  the  limits  of  which  the  com- 
pany exists,  of  all  persons  belonging  to  said  company  liable  to 
muster,  and  the  colonel  of  the  regiment  shall  include  them  in 
his  regular  annual  returns  to  the  general  of  the  brigade  and  ad- 
jutant-general. Persons  having  scruples  of  conscience  against  Aisoptrsons 
bearing  arms,  who  shall  produce  to  the  captains  of  their  tious"grupios.- 
respective  districts,  certificates,  signed  by  the  clerks  of  their  r.  s.c."3,s.3. 
respective  churches,  that  they  are  regular  members  thereof,  and 
shall  make  oath  or  affirmation  before  a  justice  of  the  peace 
that  they  are,  from  religious  scruples,  averse  to  bearing  arms, 
and  shall  also  produce  a  certificate  from  such  justice  that  such 
oath  or  affirmation  has  been  dnly  made,  shall  not  be  compelled 
to  muster  or  perform  military  duty,  except  in  cases  of  insurrec- 
tion or  invasion,  or  pay  any  tax  for  exemption ;  but  they  shall 
be  subject  to  taxation  in  time  of  insurrection,  invasion,  or  war, 
and  also  to  furnish  their  quota  of  men  or  pay  an  equivalent. 

4.  The  captains  or  commandants  of  companies  shall  enroll,  officers  to  en- 
and  keep  enrolled,  all  within  the  limits  of  their  respective  dis-  ^elura  of"ex''-^ 
tricts,  who  are  exempt  from  performing  militia  duty  by  law  empts.— R.  S. 
except  in  time  of  invasion  or  insurrection,  and  shall  return  the  c-.'3,s.  4. 
number  of  exempts  in  their  annual  returns  to  the  comman- 
dants of  regiments,  who   shall  make  a  like  return  of  all  ex- 
empts in  their  respective  regiments  in  their  annual  returns  to 

the  brigadier  and  adjutant-generals,  regulations  for  which  an- 
nual reports  are  hereinafter  prescribed. 

5.  No  captain  or  other  militia  officer  shall  enroll  any  free  Free  neproes 
persons  of  color,  except  for  musicians. 

6.  Every  citizen  enrolled  and  notified,  as  is  directed  in  the  Pei-sons  on- 
first  section  of  this  chapter,  shall,  within  six  months  thereafter,  thcmsci^et.'"''' 
provide  himself  with   a  good    musket,  smooth  bored  gun   or 

good  rifle,  shot  pouch,  and  powder-horn,  and  shall  appear  so 
armed  and  accoutred,  when  called  out  to  exercise  or  in  actual 
service ;  the  commissioned  officers  shall  severally  be  armed 
with  a  sword  or  hanger,  or  an  espontoon  ;  and  every  citizen,  so 
enrolled  and  providing  himself  with  arms  and  accoutrements 
as  herein  directed,  shall  hold  the  same  exempt  from  all  suits, 
executions,  or  sales  for  debts,  or  for  the  payment  of  taxes  ;  and 


400 


[Chap.  70. 


Forfeitures  for 
ne^Iectin!!^  to 
equip. — R.  S. 
c.  73,  s.  6. 


How  infantry 
shall  be 
divided.— E.  S. 

c.  73,  s.  7.— 
1848,  c.  58,  s. 
12. 


Kegiments, 
brigades,  and 
divisions,  how 
distinguished. 


if  he  shall  fail  to  provide  himself  with  arms  and  accoutrements, 
as  herein  directed,  and  if  the  commissioned  otRcers  of  his 
company  shall  deem  him  in  sufficient  circumstances  to  equip 
himself,  he  shall  forfeit  and  pay  for  want  of  a  good,  service- 
able musket,  gun,  or  rifle,  fifty  cents.  And  all  parents,  guar- 
dians, and  masters  shall  furnish  those  of  the  militia,  who  shall 
be  under  their  care  or  command,  with  the  arms  and  equip- 
ments above  mentioned,  under  the  like  penalty  for  each 
neglect.  Provided,  such  guardian  shall  have  suflicient  in  his 
hands  belonging  to  his  ward  to  purchase  said  arms.  If  the 
company  court-martial,  after  examination  on  oath,  shall  ad- 
judge any  person  enrolled  to  be  incapable  of  providing  him- 
self with  arms  and  accoutrements,  as  here  required,  they  shall 
make  report  thereof  to  the  next  regimental  or  battalion  court- 
martial,  as  the  case  may  be,  who  may,  if  it  shall  appear  neces- 
sary, exempt  such  person  from  the  fines  here  imposed,  until  such 
arms  and  accoutrements  shall  be  provided  and  delivered  to  him 
by  the  court-martial,  who  shall  take  security  for  the  safe-keeping 
of  such  arms  and  accoutrements  to  be  returned  when  required. 

7.  The  infantry  shall  be  divided  into  divisions,  brigades, 
regiments,  battalions,  and  companies ;  each  division  shall  con- 
sist of  at  least  two  brigades ;  each  brigade  of  at  least  four 
regiments,  each  county  forming  at  least  one  regiment ;  each 
regiment,  when  convenient,  shall  consist  of  at  least  two  bat- 
talions ;  each  battalion  of  five  companies ;  and  each  company 
of  forty-five  privates. 

8.  The  following  are  declared  to  be  the  regiments,  brigades, 
and  divisions  of  the  infantry,  to  be  known  and  distinguished 
as  here  designated,  namely  :  — 


No.  divi- 
sions. 

Of  what  brig- 
ades composed. 

No.  of 
brigades. 

Of  what  regiments  composed. 

1 

1st,  18th. 

1, 

(  1,  2,  3,  4. 
;  5,  6,  10,  9. 

18, 

2 

4th,  14th. 

4, 

I  32,  33,  34,  85,  41,  44. 

14, 

:  42,  48,  51,  53,  54,  93,  98. 

3 

6th,  16th. 

6, 

45,  47,  48,  49,  55,  56. 

16, 

:  37,  38,  50,  59. 

4 

7th,  11th. 

7, 

63,  64,  87,  88. 

11, 

60,  61,  62,  68,  69. 

5 

10th,  15th. 

10, 

70,  71,  76,  77,  78,  99,  100,  101, 

15, 

52, 79, 80, 81, 84, 89, 92, 102, 108, 109. 

6 

3d,  12th. 

3, 

24,  30,  31,  39. 

12, 

25,  26,  28,  40. 

7 

5th,  17th. 

5, 

13,  14,  15,  16,  20,  21. 

17, 

22,  23,  29,  35,  36. 

8 

2d,  13th. 

2, 

17,  18,  19,  27. 

13, 

7,    8,11,12. 

9 

8th,  9th. 

8, 

57,  58,  65,  66,  67,  91. 

9, 

\  46,  72,  73,  74,  75,  95,  96,  106,  107. 

10 

19th,  20th. 

19, 

]  86,  90,  103,  110,  111. 

20, 

\  82,  83,  97, 104,  105. 

Chap.  70.] 


401 


No.  of 

How  distinguished  in 

,.       .  I  How  distinguished  in 
;;"•  P'  Counties  where  there  are 
'^"^  '■  j    more  tllan  one  Keg't. 

Counties. 

Counties  wiiere  there  are 

Counties. 

Reg't. 

more  tlian  one  Keg't. 

Currituck, 

1 

Anson, 

53 

Lower, 

Camden, 

" 

54 

Upper, 

Pasquotank, 

3 

Randolph, 

55 

West, 

Perquimans, 

4 

" 

56 

East, 

Cliowan, 

5 

Guilford, 

57 

West, 

Gates, 

6 

58 

East, 

Tyrrell, 

7 

Caswell, 

59 

Washington, 

8 

Montgomery, 

60 

Bertie, 

9 

Stanly, 

61 

Hertford, 

10 

Cabarrus, 

62 

Hyde, 

11 

Kowan, 

63 

Beaufort, 

12 

Davie, 

64 

Martin, 

13 

Stokes, 

65 

Halifax, 

U 

Upper, 

Forsyth, 

66 

" 

15 

Lower, 

Rockingham, 

67    Lower, 

Northampton, 

16 

" 

91   lUppcr, 

Carteret, 

■   17 

Mecklenburg, 

68  jNorth, 

Craven, 

18 

69    South, 

Pitt, 

19 

Lincoln, 

70 

Edgecombe, 

20 

Upper, 

Gaston, 

71 

" 

21 

Lower, 

Surry, 

72 

North, 

Nash, 

22 

" 

73 

South, 

Warren, 

23 

Wilkes, 

74 

Lower, 

Onslow, 

24 

" 

75 

Upper, 

Jones, 

2:> 

Rutherford, 

76 

South, 

Lenoir, 

26 

77 

North, 

Greene, 

27 

" 

78 

Johnston, 

28 

Burke, 

79 

Morganton, 

Franklin, 

29 

" 

80 

Lower  Creek, 

New-Hanover, 

30 

" 

81 

Pleasant  Gardens, 

Duplin, 

31 

" 

92 

Toe  River, 

Sampson, 

32 

Buncombe, 

82 

Caney  River, 

Cumberland, 

33 

Lower, 

" 

83 

Asheville, 

" 

34 

Upper, 

" 

84 

South,           [River, 

Wake, 

35 

East  of  Raleigh, 

97 

W.  of  French  Broad 

" 

36 

West  of  Raleigh, 

Columbus, 

85 

Granville, 

37 

North, 

Havwood, 

86 

" 

38 

South, 

Da'vidson, 

87 

Lower, 

Brunswick, 

39 

88 

Upper, 

Wayne, 

40 

Macon, 

90 

Bladen, 

41 

Union, 

98 

Robeson, 

42 

Lower, 

Catawba, 

99 

" 

43 

Upper, 

Clcaveland, 

100 

Upper, 

Moore, 

44 

" 

101 

Lower, 

Cliatham, 

4:> 

Lower, 

Alexander, 

102 

" 

94 

Upper, 

Cherokee, 

103 

Ashe, 

46 

Jcft'erson, 

Henderson, 

104 

" 

95 

Council's  Store, 

Yancev, 

105 

" 

96 

Gap  Civil, 

Yadkin, 

106 

Orange, 

47 

Hillsboro', 

Watauga, 

107 

48 

Hawfield, 

Caldwell, 

108 

Alamance, 

49 

McDowell, 

109 

Person, 

50 

Jackson, 

no 

Richmond, 

51 

First, 

Madison, 

111 

East, 

'< 

93 

Second, 

112 

West, 

Iredell, 

52 

South, 

Cabarrus, 

1 

Volunteer  Reg't. 

" 

89 

N.  of  South  Yadkin, 

Stokes, 

2 

"             " 

9.    The  officers  of  the  infantry  shall  be  as  follows.     To  each  Officers  of  in- 
division  there    shall  be  one   major-general,  and  two  aids-de-  gra'iIl[^.d'Tiow 
camp  with  the  rank  and  pay  of  majoi-,  one  division  ins]iector,  appointed. 
and  one  division   quartermaster,  with  tiie    rank  and    pay  of 
lieutenant-colonel,  to  be  appointed  by  the  major-g  neral  and 
34* 


402  MILITIA.  [Chap.  70. 

commissioned  by  tlie  governor;  to  each  brigade  one  brigadier- 
general,  and  one  aid-de-camp  with  the  rank  and  pay  of  ma- 
jor, one  brigade  inspector  with  the  rank  and  pay  of  major, 
one  hospital  surgeon  and  two  mates,  and  one  assistant  dep- 
uty quartermaster-general,  with  the  rank  and  pay  of  a  cap- 
tain, to  be  appointed  by  the  brigadier-general  and  commis- 
sioned by  the  governor ;  to  each  regiment  one  colonel  and 
lieutenant-colonel,  and  one  major;  there  shall  also  be  to  each 
regiment  one  adjutant  an3  one  quartermaster,  who  shall  be 
commissioned  officers  with  the  rank  of  lieutenant,  one  pay- 
master, one  surgeon,  and  one  surgeon's  mate,  one  sergeant 
major,  one  drum  major,  and  one  life  major,  all  to  be  appointed 
by  the  commanding  ollicer  of  the  regiment;  and  the  adjutant 
shall,  when  necessary,  discharge  the  duties  heretofore  assigned 
to  the  brigade  inspectors  within  his  regiment,  for  which  ser- 
vice he  shall  be  allowed  by  the  court-martial  a  reasonable 
compensation,  if  they  think  proper,  to  be  paid  out  of  the  fmes 
collected  ;  to  each  company  there  shall  be  one  captain,  three 
lieutenants,  one  ensign,  four  sergeants,  four  corporals,  one 
drummer,  and  one  fifer  ;  all  commissioned  olllcers  of  the  same 
rank  shall  take  precedency  on  command,  according  to  the  date 
of  their  commissions ;  and  where  two  or  more  of  the  same 
grade  bear  an  equal  date,  then  their  rank  shall  be  determined 
by  lot,  to  be  drawn  by  them  before  the  commanding  officers 
of  the  division,  brigade,  regiment,  battalion,  company,  or  de- 
tachment. The  general  and  field  officers,  and  all  other  com- 
missioned olficers,  shall  reside  within  the  division,  brigade, 
regiment,  battalion,  or  company  district,  which  they  respec- 
Adjntant-gen-  tively  command.  An  adjutant-general  of  the  militia  shall  be 
appoin  e  .  ^ppQJ|-,^gj  m^^j  Commissioned  by  the  governor  of  the  State, 
who  shall  rank  as  a  brigadier-general,  and  shall  receive  a  sal- 
ary of  two  hundred  dollars  per  annum  for  his  services,  besides 
a  reimbursement  of  his  expenses,  as  hereinafter  provided,  to 
be  paid  quarterly  by  the  treasurer  by  a  warrant  from  the  gov- 
ernor. Provided.,  however.,  that  no  major-general,  brigadier- 
general,  or  colonel  shall  be  appointed  or  act  as  adjutant-gen- 
Goveniormay  ^ral.  The  governor  shall  be  entitled  to  four  aids-de-eamp, 
iippoint  four  whom  he  may  appoint  and  commission  with  the  rank  of  colo- 
— r!^S.  c^'ri' s.  nel.  The  commissions  hereby  authorized  and  directed  to  be 
».— 1842,  c.  57,  granted  to  the  several  aids-de-camp  of  the  governor,  inajor- 
'■^'  generals,  and  brigadier-generals,  to  division  inspectors,  division 

quartermasters,    brigade     inspectors,    hospital    surgeons    and 
mates,  and  assistant  deputy  t[uartermaster-generals,  shall  be 
held  during  the   pleasure   of  the   governor,  or  the  generals  to 
whom  such  aids-de-camp  and  the  other  aforesaid  officers  may 
be  attached. 
Uniform  of  of-       10.    The   uniform,  prescribed  for  the  officers  of  the  regular 
TsT'io^^'*"  ^'■™y  of  t'^^    United   States,  shall  be  the  uniform  to  be  worn 
1846,  c.  38, s.  9.  by  the  commissioned  officers  of  the  same  rank  in  the   militia 
of  this  State. 


Chap.  70.]  militia.  403 

11.    All  officers  who  may  accept  of  military  commissions  Offlcprst^i  hold 
shall  hold  and  continue  to  discharge  the  duties  of  their  re-  u^rTvelr"' 
spective  offices  for  three  years  from  the  date  of  their  comniis-  and  equip  with- 
sion,  unless  a  resignation  should  be  rendered  necessary  by  pro- '"  ^^  "lo"**- 
motion,  removal,  or  disea.se;  and  they  shall  equip  themselves 
according  to  law,  within  twelve  months,  and  any  officer  who 
shall  fail  to  comply  with  the  above  requirements  shall  forfeit 
and  pay,  if  as  high  as  the  grade  of  a  field  officer,  fifty  dollars,  PenaUv. 
of  a  captain  twenty-five  dollars,  and  of  a  lieutenant  or  ensign 
twenty  dollars ;  to  be  sued  for  and  recovered  by  the  adjutant, 
in  the  name   of  the   State  of  North   Carolina,  and  to   be  ac- 
counted for  to  the    paymaster    and   applied  as   olher  militia,,. 

c  -\ikTi  ii  I     11  ■      .1  ,-r-  r  Jlaior-penerals 

lines.  When  there  shall  occur  a  vacancy  in  the  office  of  ma-  and  all 'fieW 
jor-general,  the  adjutant-general  shall  issue  orders  to  the  brig-  officers,  how 
adier-generals  in  that  division,  who  shall  forthwith  issue  orders  commiss'ioned. 
to  the  colonels  of  their  respective  regiments  to  call  together 
the  commissioned  officers  of  their  regiments,  at  the  usual 
place  of  regimental  musters ;  and  also  to  the  general  staff  and 
cavalry  officers  who  may  reside  within  the  respective  brigades, 
at  such  place  as  may  be  designated  by  the  brigadier-general 
to  meet ;  and  at  such  time  as  the  brigadier-general  shall  di- 
rect, they  shall  proceed  by  ballot  to  elect  a  major-general  of 
that  division ;  and  it  shall  be  the  duty  of  each  colonel  and  the 
cavalry  officer  highest  in  command  presiding  at  the  election, 
to  transmit  to  the  brigadier-general  of  his  brigade  a  fair  state- 
ment of  the  votes  so  polled,  within  ten  days  after  said  election, 
and  the  brigadier-general  shall  compare  the  votes  transmitted 
to  him  by  the  said  officers  in  his  brigade,  and  shall  transmit 
to  the  adjutant-general  a  fair  statement  thereof;  and  the  ad- 
jutant-general shall  compare  the  statements  made  to  him  by 
the  brigadier-generals,  and  make  known  to  the  governor  the 
person  for  whom  the  highest  number  of  votes  may  have  been 
given,  and  a  commission  shall  be  issued  by  the  governor ;  and 
if  the  office  of  major-general  shall  be  vacated  by  death  or  re- 
moval, the  brigadier-general  in  whose  brigade  the  major-gen- 
eral lived,  shall  inform  the  adjutant-general  thereof,  and  all 
resignations  of  major-generals  shall  be  made  to  the  adjutant- 
general,  and  by  him  made  known  to  the  governor.  When  a 
■vacancy  siiall  occur  in  the  office  of  brigadier-general,  the  ma- 
jor-general of  that  division  shall  issue  orders  as  aforesaid  for 
the  election  of  a  brigadier-general  of  that  brigade,  and  the 
several  officers  as  aforesaid  shall  transmit,  within  ten  days,  a 
fair  statement  of  the  votes  given  to  the  major-general,  who 
shall  compare  the  several  returns,  made  to  him,  and  inform 
the  governor  who  shall  have  received  the  highest  number  of 
votes,  and  the  governor  shall  issue  a  commission  ;  and  if  the 
office  of  brigadier-general  shall  become  vacant  by  death  or  re- 
moval, the  colonel,  senior  in  commission,  of  the  county  wherein 
said  brigadier-general  Uved,  shall  inform  the  niajor-general  y^^^  ^^  i.^^. 
thereof,  by  mail  or  otherwise,  forthwith,  and  aU  resignations  ami  who  noti-' 
of  brigadier-generals  shall  be  made  to  the  major-general,  and  ^'^'^  "'  vatan- 


404  MILITIA.  [Chap.  70. 

cies,  and  by     by  him  made  known  to  the  governor.     If,  on  comparing  tlie 
"c^Ts'sTu.^     votes  given  for  a  major-general  there   be  a  tie,  the   governor 
shall  make  the  appointment  from  the  two  highest  candidates; 
and  if  there  be  a  tie  in  the  votes   given   for  brigadier-general, 
the  major-general  shall  make  the  appointment  from  the  two 
highest  candidates.     When  a  vacancy  shall  occur  in  the  office 
of  colonel,  lieutenant-colonel,  or  major,  the   senior   officer  in 
command  attached  to  that  regiment  shall  call  together  the 
rank  and  file    and  the  officers  of  his  regiment,  at  the   usual 
place  of  regimental  review,  and  at  such  time  as  he  may  think 
proper,  and  they  shall  proceed  to  elect  by  ballot  officers  to  sup- 
ply said  vacancies,  and  a  fair  statement  shall  be   transmitted 
by  the  officer  highest  in  command  to  the  brigadier-general  of 
his  brigade,  of  the  officers  that  have    been  elected,  and   the 
brigadier-general  shall  inform  the  governor  thereof,  from  whom 
commissions  shall  issue.     All  resignations  of  colonels,  lieuten- 
ant-colonels, or  majors,  shall  be  made  to  the  brigadier-general 
of  that  brigade  ;  and  in  case  of  vacancy  in  any  of  those  offices 
by  resignation,  the  brigadier-general  shall  order  an  election  as 
before  directed,  and  shall  inform  the  governor  of  such  resigna- 
How  officers  of  ^i°"-     "^'^^  commissioned  and  non-commissioned    officers  of 
companies        each  company  shall  be  elected  by  a  vote  of  the  majority  of  the 
e'Ts'^s' Th— ^   members  of  the  company  ;  the  election  to  be  conducted  by  the 
1840,'c.  42,  s.  1,  officer  highest  in  rank,  or  if  there   be  no  officer,  by  a  person 
s'l'^^is"'^^'   belonging  to   the  company  designated  and   authorized  by  the 
isi's.'c.  58,s.6.  colonel  of  the  regiment:  the  person   superintending  the  elcc- 
1850,  c.  89,  s.  5.  ^j^j^  gjjj^n  report  the  result  to  the  colonel ;  the  colonel  shall  re- 
port the  same  to  the  adjutant-general,  who  shall  inform  the 
governor,  and  the  governor  shall  issue  commissions  to  the  of- 
ficers so  elected.     Provided,  however,  that  on  failure  of  any 
company  to  elect  officers,  for  three  months  after  vacancies  oc- 
cur, or  to  fill  a  vacancy  within  three  months  after  the  company 
are  called  together  by  a  person  authorized   by  the  colonel  for 
that  purpose,  then  the  colonel  may  appoint  proper  officers  to 
command  said  company,  to  whom  the   governor   shall   issue 
proper  commissions  upon  a  notification  from  the  colonel ;   and 
if  the  colonel  can  get  no  person  to  accept  such   appointment, 
he  may  attach  said   company  to  any  other  adjacent  company 
in  his  regiment.     The  polls  for  all  such  elections  shall  be  held 
and  kept  open  from  eleven  o'clock,  A.  M.  until  three  o'clock,  v.  M. 
When  any  commission  for  a  major-general  or  brigadier-general 
is  issued  by  the  governor,  under  the  provisions  of  this  section, 
it  shall  be  the  duty  of  the  adjutant-general  to  have  the  same 
published  in  one  of  the  papers  in  the  city  of  Raleigh. 
Officers  to  Eive      12.    When  any  officer  commanding  a  division,  brigade,  or 
notice  of^|ieir  regiment,    shall    have    occasion    to   be  absent  from  his  usual 
S.  c.  73,' s.  lis.   residence  two  months  or  more,  he  shall  notify  the  officer  next 
entitled  to  the  command,  of  his  intended  absence,  and  also 
his  next  superior  officer  in  command. 
To  deliver  to         13.    All  officers  who  shall  have  in  their  hands  either  money 
their  successors  ^j,  papers  received  by  virtue  of  their  appointments,  shall,  when 


Chap.  70.]  militia.  405 

they  leave  their  office,  pay  and  deliver  the  same  to  their  sue-  money  or  pa- 
cessors  in  office,  under  the  penalty  of  one  hundred  dollars,  to  Cg'^sf^^'     °" 
be  recovered  in  the  name  of  the  governor,  and  applied  as  here- 
inafter directed. 

14.  The  rules   of  discipline   and  system  of  tactics,  which  Kuies  of  disci- 
may  be  approved  and  prescribed  by  Congress,  shall  be  estab-  P  ""^' 
lished  as  the   rules  for  the  discipline  of  militia  of  this  State, 

except    such    alterations    as    shall    be    rendered  necessary   by 
unavoidable  circumstances.     The  adjutant-general  shall  pro-  AJjutant-geni 
cure  McComb's  Tactics,  and  shall  furnish  to  each  major-gen-  t" 'Jj^-^tribute 
eral  and  brigadier-general  five  copies  ;  and  to  each  colonel  of  tics,  :md  iiow. 
a  regiment  a  number  of  copies  equal  to  the  number  of  com-  77^^^;. 'i'  '®'^' 
panics    and  field  officers  in  each    regiment,   for   distribution  33J  s.  ic,!*! 
among  the  officers  of  the  militia  as  the  general  and  colonel 
may  think  proper.     Upon  the  resignation  or  removal  of  any 
field  officer  or  company  officer,  he  shall  deliver  to  his  succes- 
sor in  office  the  copies  of  military  tactics  with  which  he  has 
been  furnished ;  and  in  case  of  his  death  while  in  office,  his 
executor  or  administrator  shall  deliver  the  same  as  aforesaid ; 
and  upon  a  failure  so  to  do,  the  said  officer,  or  his  executor  or 
administrator,   as  the  case  may  be,  shall  forfeit  and  pay  the 
sum  of  three  dollars,  to  be  collected  by  his  successor  in  office, 
and  applied  as  other  militia  fines. 

15.  The  regimental  or  battalion  courts-martial  shall   have  Captains'  dis- 
power  so  to  lay  off  the  several  captains'  districts,  as  to  render  tricts,  how  laid 
them  as  convenient  to  the  inhabitants  as  a  due  regard  to  the 
requisite  number  of  persons  liable  to  perform  military  duty 

will  permit ;  and  they  may  at  any  subsequent  court-martial  so 
alter,  enlarge,  or  consolidate  their  respective  districts  as  to  cre- 
ate new  ones,  or  unite  portions  of  districts  together,  so  as  to 
form  other  and  separate  districts ;  and  all  allotments  or  altera- 
tions shall  be  duly  recorded  by  the  judge  advocate  in  the 
books  of  the  regiment  or  battalion ;  where  a  small  number  of 
inhabitants  are  so  detached,  by  watercourses  or  mountains,  as 
to  render  their  attendance  inconvenient  at  any  place  where 
they  have  been  accustomed  to  muster,  and  where  such  de- 
tached sections  contain  a  population  of  thirty-six  men,  liable 
to  perform  military  duty,  the  regimental  or  battalion  court- 
martial  shall  lay  that  section  oft'  into  a  separate  captain's  dis- 
trict, and  appoint  officers  in  the  same  manner  as  in  other  dis- 
tricts ;  and  where  there  shall  be  two  or  more  regiments  in  any  Bomidary  lines 
county,  a  majority  of  the  officers  composing  such  regiments  !."j^g=™^°^°^ 
shall  have  full  power  to  alter  and  regulate  the  boundary  lines  iiow  altered".— 
of  their  regiments,  and  in  the  event  the  officers  should  not  {^j  ^' ''" "' ^" 
agree  with  respect  to  said  lines,  the  county  court,  a  majority 
of  the  justices  being  present,  shall  establish  the  said  lines;  and 
when  so  fixed,  the  judge  advocate  of  each  regiment  shall 
spread  the  same  on  their  journals. 

16.  Every  captain   or  commanding  officer  of  a  company  Regulations  .as 
shall,  at  least  twice  a  year,  at  such  place  as  may  be  designated  '"^  compiuiy 


406  MILITIA.  [Chap.  70. 

musters.— R.  by  a  majority  of  his  company,  and  agreeable  to  the  order  of 
S.  c.  73,  s.  ifr.  ^j,g  commanding  otHcer,  muster,  train,  and  exercise  such  com- 
pany, and  shall  cause  them  to  remain  under  arms  at  least  two 
hours  on  every  day,  by  himself,  or  one  of  his  lieutenants,  or 
his  ensign,  and  then  and  there  teach  them  the  manual  exer- 
cise, and  the  proper  company  mancruvres,  at  which  muster 
the  officers  and  privates  shall  appear  armed  and  equipped  as 
hereinbefore  required.  The  captains  shall  not  call  their  men 
together  without  their  consent,  for  the  purpose  of  company 
musters,  more  than  twice  in  each  year,  except  in  cases  of  insur- 
rection or  invasion.  Provided,  that  this  section  shall  not 
apply  to  volunteer  companies:  and  provided  further,  that  when 
any  person  enters  into  the  rank  in  the  extra  musters,  he  shall 
be  subject  to  the  same  discipline,  and  governed  by  the  same 
rules  and  penalties,  as  govern  them  in  their  regular  musters. 
If  any  captain  or  commanding  oflicer  of  a  company  shall  fail 
or  neglect  to  muster  his  company  as  herein  directed,  he  shall 
forfeit  and  pay  six  dollars,  to  be  adjudged  by  the  next  regi- 
mental court-martial ;  and  if  he,  or  any  commissioned  officer 
of  the  company,  shall  fail  to  appear  equipped,  as  directed,  at 
the  said  muster,  the  officer  so  failing  shall  pay  four  dollars ; 
■  and  if  a  non-commissioned  officer  or  private  shall  fail  to 
attend  at  a  company  muster,  he  shall  forfeit  and  pay  a  sum 
not  exceeding  two  dollars  nor  less  than  one  dollar,  and  if  he 
attend  without  being  armed  and  accoutred  he  shall  pay  a  sum 
not  exceeding  one  dollar  nor  less  than  fifty  cents,  which  sum 
shall  be  adjudged  by  the  company  court-martial,  according  to 
the  circumstances  of  the  delinquent.  Provided,  that  every 
absentee  shall  be  allowed  until  the  next  succeeding  company 
muster  to  make  his  excuse,  which  shall  always  be  on  oath,  the 
officer  highest  in  rank  present  being  authorized  to  administer 
the  same.  When  companies  consist  principally  of  persons 
residing  within  any  town,  and  the  muster  ground  is  at,  or 
within  one  mile  of,  said  town,  all  fines  imposed  by  this  sec- 
tion for  not  appearing  at  reviews  and  musters,  or,  if  appear- 
^^ng,  not  being  properly  armed  and  accoutred,  shall  be  doubled. 
Company  17.    The  commissioned  officers  of  the  company,  or  any  two 

How  to  pro-      of  them,   after  every   muster  of  the  company,  shall,   on    the 
ceed.  same  day,  meet  in  court-martial,  and  proceed  to  try  and  deter- 

mine on  all  cases  which  may  come  before  them ;  and,  on  con- 
viction of  any  delinquent,  the  officer  highest  in  rank  present 
shall  enter  up  judgment,  and  issue  writs  of  execution  against 
the  goods  and  chattels  and  body  of  the  delinquent,  as  on  judg- 
Appeai  al-  ments  in  civil  cases.  The  rio;ht  of  appeal  shall  be  allowed 
from  a  company  to  a  battalion  or  regimental  court-martial, 
but  no  appeal  shall  be  granted,  unless  the  person  praying  the 
.same  shall  give  security,  to  be  approved  by  the  captain  or  pre- 
siding officer  of  the  company  court-martial,  to  abide  by  the 
decision  of  the  battalion  or  regimental  court-martial ;  which 
appeal  shall  be  taken  in  like  manner  as  appeals  from  justices 


lowed. 


Chap.  70.]  militia.  407 

of  the  peace  to  the  county  courts,  and  shall  be  proceeded  on 

in  like  manner  by  the  battalion  or  regimental   courts-martial. 

Every  execution   issuing    upon  a  judgment   entered   up    be- r.xecutioni 

fore    any  court-martial,  shall    be  directed  to    a   constable,  or  nmrtiai  how 

the  sheriff  of  the  county  ;  and  the  officer  to  whom  such  execu-  ?nd  to  wiwin 

tion  may  be  directed  and  delivered,  shall  proceed  to  collect  the 

same  in  the  manner  and  under  the  rules  established  in  civil 

cases,  and  shall  be  allowed  the  same  fees  for  his  services ;  he 

shall  make  his  return  to  the  next  sitting  of  the  court-martial 

from  which  the  execution  issued,  under  a  penalty  of  twenty  Penalty  on 

dollars  for  every  neglect  of  duty,  to  be  recovered  by  suit  on  s[a^b7e^foTneg-' 

the  official  bond  of  such  constable  or  sheriff,  in  the  name  of  lect.— R.  s.  c. 

the  State,  to  the  use  of  the  presiding  officer  of  the  court-mar-  ]^42'c.'57p.  3- 

tial    from   which    such    execution    issued.       Any    penalty    so  i846,c.3h,s.  7; 

recovered  shall  be  appropriated  as  other  militia  fines  ;  and  in  }g**' "' ^^' ^" 

case  the  presiding  officer  of  any  court-martial  shall  fail  in  any 

such  suit,  he  is  authorized  to  use  so  much  of  the  fines  of  his 

company,  battalion,  or  regiment,  as  the  case  may  be,  as  shall 

be  necessary  to  defray  the  expense  of  such  suit. 

18.  For  the  encouragement  of  military  music,  the  captain  Company  mu- 

r  ,  .].,  I.  .     (.       .  "^  1      L  r  sicians,  how 

of  each  military  company  of  infantry  may  select  from  among  appointed,— 
the  persons  enrolled  in  his  company,  one  fifer  and  one  drum-  their nriviieges. 
mer,  each  being  properly  qualiiied  for  their  appointment,  which  is. '  "  " '  '  ■ 
selection  shall  be  made  under  the  direction  and  with  the 
approbation  of  the  field  officers  belonging  to  the  regiment  to 
which  such  company  is  attached ;  and  when  such  selection  of 
musicians  is  made,  the  field  officers  shall  grant  a  certificate  to 
such  musicians  of  their  appointment,  and  the  county  court  of 
the  county  shall  exempt  and  discharge  such  musicians,  so 
selected,  during  their  continuance  in  appointment,  from  serv- 
ing on  all  juries,  from  working  on  the  roads,  and  from  the  pay- 
ment of  poll  taxes ;  such  musicians  shall  be  removable  at  the 
pleasure  of  the  field  officers  of  the  regiment  to  which  they 
severally  belong,  and  shall  attend  every  muster  of  their  respec- 
tive companies,  and  also  the  muster  of  the  officers,  and  per- 
form the  duties  of  their  appointment,  under  the  penalty  of 
four  dollars  for  every  neglect,  to  be  collected  and  applied  in 
the  same  manner  that  other  fines  are. 

19.  No  overseer  of  a  road  shall  order  the  hands  under  him  Road  hands  not 
to  work  on  the  days  previously  appointed  for  musters  by  the  o° t'™' mu^Ln- 
captain  of  the  company  to  which  such  hands  belong.  day.  — r.  s.  c. 

20.  The  captains   shall,  at  the  several  musters,  or  within  clip'tain^  to 
thirty  days  after  being  required   so  to  do,  or  immediately  if  make  returns 
required  at  a  regimental  or  battalion  muster,  make  a  return  of  "  ■■'3"'s720.  ^ 
their  respective  companies  to  the  commanding  officer  of  the 
regiment  or  battalion,  under  penalty  of  ten  dollars  in  the  first 

case,  or  disobedience  of  orders  in  the  second  case. 

21.  There  shall  be  in  every  year  at  least  one  regimental  or  Ri^mental  or 
battalion  muster,  to  be  ordered  by  the  commandant  of  such  te'rs."'"'"  '""° 
regiment  or  battalion,  at  such   place   as  may  have  been  des- 
ignated, or  may  hereafter  be  designated  by  a  majority  of  the 


408  MILITIA.  [Chap.  70. 

commissioned  officers  of  such  regiment  or  battalion,  at  which 
such  commanding  officer  shall  cause  the   militia  to  be  exer- 
Where  held,     cised  at  least  two  hours  on  each  day.     The  battalion  muster 
shall  be  held  as  near  the  centre  of  each  battalion  district  as  is 
Dutyofcolo-    possible  to  find  a  suitable  place  for  said  muster.     The  colonel 
°®'-  shall  attend  at  such  battalion  muster  on  the  days  of  drill,  and 

the  days  of  review,  and  drill  and  instruct  the  officers  and  men 
Penalty  for  in  their  duties :  and  if  he  fails  to  discharge  said  duty,  he  shall 
— ^^^S^c''"?'  ^^  fined  not  less  than  ten,  nor  more  than  twenty  dollars,  unless 
9. 21.  — i846,c.  he  renders  to  a  court-martial  a  sufficient  excuse  for  such  fail- 
38,  s.  11.  ^^|.p  .  g^jj  court-martial  to  be  called  by  the  brigadier-general, 

upon  information  to  him  by  the  adjutant,  and  to  consist  of  at 
least  five  commissioned   officers,  one   of  whom  shall  be  of  as 
high  rank  as  colonel,  and  the  others  of  at  least  as  high  rank  as 
captain. 
PennUyonoffi-      22.    If  any  officer  shall  fail  to  attend  at  any  review,  regi- 
cers  fiiiiiig  to  cental  or  battalion  muster,  or,  attending,  be  not  armed  as  re- 
attend  reviews        .      ,  ,         ,  .       ,        ,         i         ,     n  •   x-        i     r  x 
or  musters.—    quired  by  this  chapter,  he  shall,   on  conviction  belore  a  court- 

^- ''••'■^^'S- 22- niartial,  forfeit  and  pay,  if  a  field  officer,  the  sum  of  twenty 
dofiars  ;  if  a  commissioned  officer  under  that  grade,  the  sum 
of  ten  dollars  ;  and  every  non-commissioned  oflicer  or  private, 
who  shall  fail  to  attend   such  review  or  muster,  shall,  on  con- 
viction, pay  such  sum  as  shall  be  adjudged  against  him  by  the 
commissioned   officers   of  the   company  to  which  he    belongs, 
not  exceeding  four  dollars,  nor  less  than  one  dollar,  to  be  as- 
certained at  the  next  company  muster,  and,  when  collected, 
to  be  accounted  for  with  the  court-martial ;  or,  if  appearing, 
be  not  armed  as  by  law  directed,  shall,  for  such  default,  forfeit 
and  pay  a  sum  not  more  than  one  dollar  and  fifty  cents,  nor 
less  than  fifty  cents,  to  be   adjudged   and  accounted  for  as 
aforesaid. 
Commandants       23.    The  commanding  officer  of  each  regiment  or  battalion 
&"f!)"l*iv'e^',o  ^^^"  §'^^  *■*'  ^^^  commanding  officers  of  the  companies,  under 
tioeofreview.s  his  command,  not  less  than  ten  days'  notice  of  the  battalion 
73''s~23'  ^'  "'  °''  regimental  musters  or  reviews,  which  may  at  any  time  be 

ordered. 
Commissioned       24.    Every  commissioned  and   non-commissioned  officer  of 
"'^ntf&c'^'^to"  ^'^^  infantry,  by   appointment   of  the   commanding  officer  of 
exercise,  day     each  regiment,  shall   meet  the  day  before  that  on  which  the 
before  review,   commanding   officer   of   such   regiment  or  battalion   has  ap- 

renaltytor lail-        ,  -,..,,-,.  /.  •  •  ^    i  ^  i 

uro.  — R.  S.  c.  pomtcd  for  holdmg  of  reviews  or  regimental  musters,  wnere 
Ib\I'^«~  11  the  said  officers  of  infantry  shall  be  exercised  by  the  adjutant, 

1846,c.3o,s.ll.  1.  .,.  r-  1  •  1  1      A    1- 

or  by  the  commanding  otlicer  of  such  regmient  or  battalion, 
at  least  tliree  hours,  when  and  where  they  shall  be  instructed 
in  all  matters  of  field  exercise  and  discipline,  according  to  the 
system  which  may  be  established  by  law.  And  any  commis- 
sioned or  non-conmiissioned  officer,  who  shall  fail  or  neglect 
to  appear  at  the  time  and  place  so  appointed  by  the  com- 
mandant of  his  regiment  or  battalion,  or,  if  appearing,  be  not 
armed  and  e(|uipped  as  by  this  chapter  directed  when  at  any 
review  or  parade,  such  commissioned  officer,  so  failing  and 


Chap.  70.]  militia.  409 

neglecting,  shall  forfeit  and  pay  the  same  sum  which  such  offi- 
cer would  be  compelled  to  pay  in  cases  of  failure  and  neglect 
at  any  regimental  or  battalion  reviews  or  parades,  and  such 
non-commissioned  officer  shall  be  fined  for  such  failure  two 
dollars,  unless  he  furnishes  a  sufficient  excuse  to  the  regi- 
mental court-martial ;  and  the  same  shall  be  recovered  in  the 
same  manner  and  the  money  applied,  as  in  other  like  cases 
directed  by  this  chapter,  and  such  officer  shall,  in  every  instance 
whatever,  be  subject  to  the  same  punishment  for  neglect  of 
duty  or  disobedience  of  his  superior  officers,  as  such  officer 
would  be  subject  to  when  in  actual  military  service. 

25.  If  any  commissioned  officer  shall  suffer  himself  to  be  Pejiaities  an 
intoxicated  on  parade  or  drill,  or  behave  in  a  riotous  or  disor-  ".Mes'fbTnX-' 
derly  manner  when  on  duty,  or  disobey  the  orders  of  his  com-  beiKwin,!;. — 
manding  officer,  he  may  be  ordered  in  arrest  by  said  command-  23.  — 1842' c'. 
ing  officer  until  the  parade  or  drill  is  over,  and  shall  be  subject  ",  s.  4. 

to  trial  by  a  court-martial,  and  by  them  fined  not  to  exceed 
twenty-five  dollars,  or,  at  their  discretion  shall  be  reprimanded 
jjublicly,  or  cashiered.  If  any  non-commissioned  officer  or 
private  shall,  during  the  time  of  muster,  or  whilst  on  duty, 
behave  in  a  disorderly  manner,  or  resist  or  refuse  to  obey  his 
commanding  officer,  he  may  be  ordered  in  arrest  by  such  com- 
manding officer  during  the  time  of  muster  or  duty,  and  fined 
at  the  discretion  of  the  court-martial,  not  to  exceed  five  dol- 
lars. Provided,  the  said  court-martial  be  regularly  detailed  as 
prescribed  in  this  chapter.  ' 

26.  If  any  person,  liable   to   perform  duty,  shaU  appear  at  Persons  on 

or  near  the  parade  ground,  during  the  time  of  any  review  or  "^!jf*^''  S','""«l 
muster,  and  shall  not  take  his  proper  station  and  perform  the  d'uty.'iir'rested. 
duties  required  of  him  by  law,  or  behave  himself  in  a  disor-  ~Jg  ''•  "■  "• 
derly  manner  while  on  parade,  the  commanding  officer  of  the  ^' "  ' 
regiment  or  corps  shall   order  the   said  person  under  guard, 
there  to  be  detained  during  the  time  of  exercise  or  the  ser- 
vice then  performing,  and  until  the  militia  are  discharged,  and 
such  person  shall  further  be  fined  at  the  discretion  of  the  court- 
martial. 

27.  No  qfficer  or  soldier  directed  by  this  chapter  to  appear  Persons  at- 
and  muster  as  aforesaid,  shall  be  liable  to  be  taken  or  arrested  '""''"R  ™"s- 
in  any  civil  action  or  process  whatever,  on  the  day  such  per-  rroma'm"t'in 
son  is  directed  to    appear,  or  in  a  reasonable  time  either  in  '^'^■''  "^^'^^■ 
going  to,  continuing  at,  or  returning  from  the  place  appointed 

to   muster  or  appear,  but  every   such    arrest   shall    be    void. 
Every  person  required  to  attend  musters  and  reviews,  going  to  Not  to  pav  tolls 
or  returning  from  the  same,  shall  be  suffered  to  pass  over  any  j^'' g "' yf gjy 
toll-bridge  or  toll  causeway,  and  shall  be  put  over  any  ferry,  ''  ''^'    '^' 
without  delay,  free  from  any  charge  whatever.     If  any  ferry- 
man or  proprietor  of  a  toll-bridge  "shall  demand  pay,  or  refuse 
to  put  over  such  person,  he  shall  forfeit  and  pay  for  every  such 
offence  four  dollars  to  the  sole  use  of  the  informer. 

28.  All  parents,  masters,  and  guardians  shall  be  liable  for  rnr^nt.,  &c., 
the  payment  of  any  fines  incurred  by  those  under  their  care,  !!:'K!''s!"c.'^7r 

35  s.  28. 


410 


[CiLVP.  70. 


as  well  for  non-attendance   at  company,  battalion,  or  regi- 
mental musters  and  general  reviews,  as  for  not  being  armed 
and  equipped  as  hereinbefore  provided. 
Ee|iment!ii  29_    The  commanding  olHcer  of  each  regiment  or  battalion 

courts°-martiai.  shall  Order  a  court-martial  to  be  held,  at  the  place  appointed 
Their  power  for  fijg  muster  of  the  same,  on  the  day  after  the  regimental  or 
S."o.  73',  S.T9.  battalion  muster,  or  on  the  same  day  if  convenient,  which 
court  shall  consist  of  a  majority  of  the  officers  of  tlie  regiment 
or  battalion,  one  of  whom  shall  be  a  field  officer,  and  two  of 
the  grade  of  captain,  and  the  highest  officer  in  rank  present 
shall  be  president.  The  court  shall  be  notified  of  their  duty 
by  the  adjutant  of  the  regiment  or  battalion,  by  a  roster  to  be 
kept  by  him  ;  and  the  said  court,  wlien  convened,  shall  ap- 
point a  judge  advocate,  who  shall  himself,  in  the  presence  of 
the  court,  take  the  following  oath  :  —  "I,  A.  B.,  do  swear,  that 
I  will  well  and  truly  perform  the  duties  of  judge  advocate  of 
this  court,  according  to  the  best  of  my  skill  and  ability :  so, 
help  me  God."  And  the  judge  advocate  shah  administer  the 
following  oath  to  the  members  of  the  court-martial :  —  "  You, 
A.  B.,  do  swear  that  you  will  hear  and  determine  all  causes 
which  may  come  before  this  court,  and  that  you  will  faithfully 
report  all  delinquents  that  come  within  your  knowledge ;  that 
you  will  account  for  all  fines  and  forfeitures  by  you  collected 
or  received,  and  in  all  cases  enforce  a  due  execution  of  the 
militia  laws  of  the  State,  to  the  best  of  your  Icnowledge  and 
ability ;  so,  help  you  God."  They  shall  inquire  into  the  age 
and  ability  of  all  persons  that  come  before  them  by  appeal, 
and  exempt  such  as  may  be  excused  on  account  of  age,  or  be 
judged  incapable  of  service  ;  also  try  and  decide  on  all  persons 
charged  with  omission  or  commission,  as  well  by  officers  as  by 
privates.  The  said  regimental  or  battalion  court-martial  shall 
hear  and  determine  all  appeals  from  the  company  court-mar- 
tial, and  order  or  dispose  of  all  fines,  for  buying  drums,  fifes, 
and  other  implements  of  war,  for  the  use  of  the  company, 
where  the  same  shall  arise,  and  for  supplying  the  militia  with 
arms  and  accoutrements,  and  for  other  purposes  that  will  pro- 
mote the  good  thereof.  The  judge  advocate  shall  be  allowed 
a  reasonable  salary,  to  be  paid  out  of  the  fines,  for  his  services ; 
his  duty  shall  be  to  write  at  length  the  proceedings  of  the  said 
court;  for  all  fines,  which  may  be  imposed  by  the  court-mar- 
tial, he  is  authorized  and  reqmred  to  enter  up  judgment  and 
issue  execution. 

30.  The  paymaster  shall  demand  and  receive  of  the  adju- 
tants, sergeants,  constables,  and  others,  who  may  have  col- 
lected them,  all  fines  and  forfeitures,  and  distribute  the  .same 
agreeable  to  the  directions  of  the  court-martial,  and  settle  his 
accounts  annually  with  the  judge  advocate  ;  and  the  ])aymaster 
shall,  before  he  enters  on  the  duties  of  his  office,  give  bond  and 
sufficient  security,  in  the  sum  of  two  hundred  dollars,  payable 
to  the  commanding  officer  of  the  regiment  and  his  successors 
in  office,  for  the  faithful  accounting,  agreeable  to  law,  for  all 


Duty  of  pay 
in  asters. —  R 
,S.  c.  73,  3.  3 


Chap.  70.]  militia.  411 

sums  of  money  which  may  come  into  his  hands  by  virtue  of 
his  appointment;  and  the  commanding  officer  aforesaid,  under 
the  penalty  of  two  hundred  dollars,  shall  sue  for  and  recover 
the  same,  and  when  received  by  him,  apply  it  as  is  already  by 
law  directed ;  and  the  several  paymasters  shall  be  allowed  a 
reasonable  compensation  for  their  services  by  the  court-martial. 
In  case  there  shall  be  no  paymaster  appointed  by  the  com- 
mandant of  any  regiment,  then  each  commandant  shall  per- 
form and  execute  the  duties  of  paymaster,  as  above  required. 

31.  Every  officer  shall  take  the  following  oath,  to  be  ad- Oath  of  officers, 
ministered  in  open  court-martial  by  the  judge  advocate,  or,  if  31. '  '  "  '  ' 
a  company  officer,  it  may  be  taken  before  the  commanding 

officer  of  the  regiment:  —  "You,  A.  B.,  do  solemnly  swear, 
that  you  will  execute  the  office  of  according  to  the 

rules  of  military  discipline  and  the  laws  of  the  State  to  the 
best  of  your  knowledge  and  ability,  and  that  you  will  support 
the  constitution  of  the  United  States  and  of  this  State ;  that 
you  will,  at  the  court-martial  of  the  company  to  which  you 
belong,  duly  administer  justice,  and  apply  fines  and  penalties 
according  to  law  and  to  the  best  of  your  ability,  without  favor, 
affection,  or  partiality :  so,  help  you  God."  No  officer  shall 
be  allowed  to  sit  in  a  regimental,  battalion,  or  company  court- 
martial,  unless  he  shall  have  taken  the  oath  aforesaid. 

32.  If,  at  any  regimental,  battalion,  or  company  court-mar-  Proceedings  at 
tial,  or  company  of  the  officers,  there  shall  be  any  delinquents,  against  d'eiin'- 
either  for  non-attendance,  or  not  being  properly  armed  and  '5"^"'^-~^-  ^• 
accoutred,    or    for   disorderly  conduct,  proclamation    shall  be   '     '  ' 
made  by  the  captain  or  commanding  officer,  calling  the  names 

of  all  delinquents  enrolled,  that  they  attend  the  trial  at  the  fol- 
lowing company  court-martial,  which  shall  be  deemed  a  legal 
notice :  if  field  officers,  or  officers  of  the  regimental  staff,  such 
notice  shall  be  given  by  the  commanding  officer  or  adjutant  of 
the  regiment  or  battalion,  or  to  the  officers  assembled  ;  and  if 
any  officer  or  private  has  an  excuse  to  offer  to  the  court-mar- 
tial, he  may  send  his  affidavit  taken  before  a  civil  magistrate, 
or  produce  a  witness,  or  he  may  personally  appear  and  make 
oath  to  the  cause  of  his  delinquency;  and  in  all  cases,  whether 
from  neglect  or  failure  of  the  officers  and  privates  at  regimental 
or  battalion  musters,  or  of  appeals  froiu  the  company  courts- 
martial,  and  of  all  other  cases  of  which  the  regimental  courts- 
martial  have  jurisdiction,  their  determination  shall  be  final. 

33.  The  several  courts-martial  shall  have  power  to  adjourn  Courts-martial 
from  day  to  day,  or  to  any  future  day,  when  the  officers  enti-  R"k''cl'°73,"s~ 
tied  to  compose  the  same  shall  attend,  under  the  penalties  by  33. 

law  established  in  other  like  cases  for  non-attendance,  and  at 
which  time  the  luifinished  business  of  the  court  may  be  acted 
upon  :  if  there  should  not  be  a  sufficient  number  at  the  place 
of  adjonriunent  to  form  a  quorum,  the  officer  ordering  the  same 
shall  have  power  to  continue  its  adjournments. 

34.  Every  commanding  officer  of  a  regiment,  shall  exact  Duties  of  com- 
and  enforce  regular  settlements  of  all  fines,  collected  under  the  "'"saTfomics. 


412 


Penalty  on 

captains. — 
R.  S.  c.  73,  s. 
34.  — 1842,  c. 
S8,  s.  ?. 


Eetums  to  bo 
made  hy  com- 
mandants of 
regiments. — 
B.  S.  c.  73,  s. 
35. 


Duties  of  gen- 
erals, as  to  re- 
view,s.  —  K.  S. 
c.  73,  s.  36. 


Returns  to  be 
made  by  brig- 
adier and  ma- 
jor-generals.— 
R.  S.  c.  73,  s. 


Penalty  on 

general  officer, 
&c.  for  failing 
to  review  or 
muster,  or  to 
make  returns, 
or  be  equipped. 


MILITIA.  [Chap.  70. 

militia  laws,  from  the  several  persons,  charged  with  the  col- 
lection thereof  within  his  regiment,  whicii  lines  shall  be  appro- 
priated as  directed  by  law ;  and  each  captain  or  commanding 
officer  of  a  company  shall  report  in  writing,  once  in  every  six 
months,  to  the  commanding  officer  of  the  regiment,  to  which 
he  belongs,  the  amount  of  fines  assessed  in  his  company 
within  that  period;  and  if  he  shall  neglect  to  make  such  re- 
port and  account  for  such  fines,  he  shall  forfeit  for  every  such 
neglect  the  sum  of  ten  dollars,  unless  he  renders  to  the  regi- 
mental court-martial  a  sufficient  excuse  therefor. 

35.  Every  commandant  of  a  regiment  shall,  at  least  once  in 
every  year,  on  or  before  the  25th  of  October,  make  a  return  to 
the  brigadier-general  of  the  brigade  to  which  such  regiment 
belongs;  and  shall  transmit  a  duplicate  of  the  same  to  the  ad- 
jutant-general, on  or  before  the  15th  day  of  November  in  every 
year,  at  the  bottom  of  which  he  shall  report,  whether  or  not 
his  regiment  was  reviewed  by  the  major  or  brigadier-general, 
and  at  what  time. 

36.  Every  major-general  shall  review  his  division  once  in 
every  three  years,  and  a  brigadier-general  shaU  review  his  brig- 
ade once  in  every  two  years ;  the  several  corps  composing  a 
division  or  brigade  to  meet  by  order  of  the  reviewing  general, 
by  regiments,  at  such  time  as  he  may  appoint,  and  at  the 
usual  places  of  regimental  musters,  in  their  respective  coun- 
ties. The  major  and  brigadier-generals  shall  give  fifty  days' 
notice,  by  order  to  the  commandants  of  their  regiments  or 
brigades,  of  the  time  of  the  review,  previous  to  such  review 
taking  place.  Any  major  or  brigadier-general,  failing  to  give 
notice  as  above  directed,  shall  forfeit  and  pay,  for  every  oflence, 
the  sum  of  forty  dollars,  one  half  to  the  use  of  the  county,  in 
which  recovery  is  had,  and  the  other  half  to  the  use  of  the  per- 
son suing  for  the  same. 

37.  Tlie  brigadier-general  shall  make  a  return  of  his  brigade 
to  the  major-general  of  his  division,  on  or  before  the  tenth  day 
of  November  in  every  year,  and  shall  transmit  a  duplicate  of 
the  same  to  the  adjutant-general,  on  or  before  the  fifteenth  day 
of  November,  in  which  he  shall  state  when  his  brigade  was 
last  reviewed  by  the  major-general  of  his  division.  The  major- 
general  shall  make  a  return  of  his  division  to  the  adjutant- 
general,  annually  on  or  before  the  fifteenth  day  of  November. 

88.  If  any  general  officer,  or  commandant  of  a  regiment, 
shall  fail  to  review  his  division  or  brigade,  or  muster  his  regi- 
ment, or  to  make  an  annual  return  of  his  division,  brigade,  or 
regiment;  or  if  any  major  or  brigadier-general  shall  fail  to 
equip  himself,  the  governor  shall  cause  the  adjutant-general  to 
give  such  deliiuiuent  officer  thirty  days'  notice  of  his  neglect 
of  duty;  and  if  such  delinquent  officer  does  not,  within  forty 
days  thereafter,  render  a  satisfactory  excuse  for  such  neglect, 
by  showing  to  the  governor  that  such  delinquency  happened 
in  consequence  of  indisposition,  absence  from  the  State,  or 
other  sufficient  cause,  the  governor  shall  strike  his  name  from 


7-# 


Chap.  70.]  militia.  413 

the  list  of  officers,  and  commnnicate  the  same  to  the  adjutant- No  officer  to  be 
general,  who  shall  have  it  published  in  some  newspaper  within  commfssi™'''' 
the    State,  and  issue   proper  notices  to   supply  the  vacancy,  without trid.— 
Provided,  ho  we  uer,  that  no  commissioned  officer  shall  be  de- gj^  _l'^j'3^^|  ^^ 
prived  of  his  rank   or  rights  as   such,  without  a  regular  trial  38,  s.  12. 
before  some  court-martial,  detailed  for  that  purpose  in  manner 
prescribed  in  this  chapter. 

39.  The  adjutant-general  shall  distribute  all  orders  from  the  Duty  ofadju- 
commander-in-chief  of  the  State  to  the  several  corps;  attend  t™^"?^"^™'-- 
public  reviews,  if  required,  when  the  commander-in-chief  of  39. 
the  State  shall  review  the  militia,  or  any  part  thereof;  obey  all 
orders  from  him  relative  to  carrying  into  execution  and  per- 
fecting the  system  of  military  discipline,  established  bylaw; 
furnish  blank  forms  of  different  returns  that  may  be  recjuired, 
and  explain  the  principles  upon  which  they  shall  be  made; 
and  also  furnish  blanks  of  such  returns ;  shall  demand  and 
receive  from  the  several  officers  of  the  diflerent  corps  through- 
out the  State,  returns  of  the  militia  under  their  command,  re- 
porting the  actual  situation  of  the  arms  and  accoutrements, 
and  their  delinquencies,  and  every  other  thing  which  relates  to 
the  advancement  of  good  order  and  discipline  ;  all  which  the 
several  officers  of  the  divisions,  brigades,  regiments,  and  bat- 
talions are  required  to  make,  in  the  manner  herein  directed, 
that  the  adjutant-general  may  be  duly  furnished  therewith, 
previous  to  the  biennial  meeting  of  the  General  Assembly; 
from  all  which  returns  he  shall  make  proper  extracts,  and  lay 
the  same,  with  a  report  of  the  general  state  of  the  militia, 
magazines,  and  military  stores,  and  such  improvements  as  he 
may  think  necessary  for  the  advancement  of  discipline  and 
benefit  of  the  militia,  biennially  before  the  General  Assembly, 
or  the  commander-in-chief  of  the  State,  who  is  required  to  lay 
the  same  without  delay  before  the  said  assembly.  And  the 
adjutant-general  shall  also  annually  make  a  return  of  all  the 
militia  of  the  State  to  the  president  of  the  United  States.  In 
failure  of  which  recited  duties,  he  shall  suffer  the  following 
fines  and  penalties :  for  not  attending  all  public  reviews,  when 
required  by  the  governor,  fifty  dollars ;  for  not  furnishing  blank 
forms,  as  required  by  this  chapter,  ten  dollars  for  each  neglect, 
one  half  to  the  use  of  the  informer  and  the  other  half  to  the 
use  of  the  State;  for  not  distributing  all  orders  from  the  com- 
mander-in-chief of  the  State,  or  for  not  making  returns  as  re- 
quired by  this  chapter,  upon  conviction  of  either  before  a  gen- 
eral court-martial,  to  be  ordered  by  the  governor,  he  shall  be 
cashiered;  he  shall  be  compensated  for  the  expense  of  all  the 
blank  forms  of  returns,  necessarily  required  in  his  department; 
and  the  postage  of  all  letters  to  and  from  him  in  his  capacity 
as  adjutant-general,  shall  be  paid  to  him  by  the  treasurer  of 
the  State,  on  the  adjutant-general  producing  a  stated  account 
of  the  same  by  him  certified :  he  shall  keep  a  roster  of  the 
names  and  dates  of  the  commissions  of  each  major  and  briga- 
dier-general in  the  State,  likewise  the  counties  under  each  of 
35* 


414  MILITIA.  [Chap.  70. 

their  commandri  respectively,  designating  therein  the  numbers 
of  eacli  division,  brigade,  and  regiment  ready  at  all  times  for 
immediate  inspection  ;  shall  at  least  once  in  every  three  years 
transmit  a  copy  of  this  roster,  certified  by  him,  to  the  president 
of  the  United  States,  to  the  governor  of  the  State,  and  to  the 
General  Assembly  ;  and  he  shall  from  time  to  time  make  a 
report  to  the  General  Assembly  of  what  shall  be  done  by  him 
in  virtue  of  his  appointment,  and  accompany  such  report  with 
such  remarks,  as  may  by  him  be  deemed  necessary  for  the 
better  regulation  and  improvement  of  the  militia  discipline 
throughout  the  State. 
In  certain  cases      40.  If  no  immediate  opportunity  offers  for  forwarding  orders 

returns  and  or-  ,  .,  ^    ■    ^         r       ,  ■    ,      ■  ,11. 

ders  sent  or  returns,  the  certamty  01  which   insures  a  speedy  delivery 

tlirough  post-    thereof,  which  can  be  easily  ascertained  and  proved,  then  the 

office. — R.  b.  c.     jT-  ■         ■         ,,  1  "^      1  •         ,1  /        ,, 

73,  s.  40.  oilicer  issuing  the  order  or  making  the  return  (as  the  case  may 

be)  shall  lodge  the  same,  properly  directed,  in  the  post-office, 

marked  on  the  back  "  public  service,"  under  which  he  shall 

write  his  name  and  grade,  and  a  return  thus  made  shall  be 

deemed  sufTicient  and  good  in  law. 

Governor  may       41.  The  governor  may  mitigate  or  remit  all  fines  and  pen- 
remit  fines  and  „ij.-  1-1  u  1   ■  I-  ji  ,        r  ■        ■ 
penalties.— R.    ^'ties,  which  may  be  recovered  in  any  of  the  courts  of  justice 

S.  c.  73,  s.  41.    against  any  general  or  field  officer,  arising  under  the  militia 

laws  of  the  State. 

Mrair^how  '*^'  ^'^^^"^  ^^^^^  ^'^>  "^  ^^"^''i  brigade  of  the  militia  in  the 
formed,'offi^  State,  One  regiment  of  cavalry ;  there  shall  be  to  each  regiment 
&c!^'r*'s''"''  °^  cavalry  one  colonel,  one  lieutenant-colonel,  and  one  major, 
73,s.42.— is42,  to  bc  elected  and  commissioned  in  like  manner  as  such  officers 
9'- ^^46 '  ^'^ss'  ^^'^  elected  and  commissioned  in  the  infanti-y  ;  and  out  of  the 
s.'s.  '  ■  '  militia  enrolled  in  the  State  there  may  be  formed,  out  of  each 
battalion  that  has  a  separate  muster,  at  least  one  troop  of  cav- 
alry, to  be  formed  of  volunteers,  which  shall  bc  uniformly 
clothed  in  regimentals  at  their  own  expense,  the  color  and 
fashion  to  be  determined  by  the  field  officers  of  cavalry  of  the 
regiment  or  battalion  to  which  they  belong;  to  each  troop  one 
captain,  two  lieutenants,  one  cornet,  four  sergeants,  four  cor- 
porals, one  saddler,  one  farrier,  one  trumpeter,  and  no  less  than 
twenty-four  dragoons.  The  commissioned  officers  to  fiu-nish 
themselves  with  good  horses,  at  least  fourteen  and  a  half  hands 
high,  to  be  armed  with  a  sword  and  pair  of  pistols,  the  holsters 
of  wliich  shall  bc  covered  with  bear  skin  ;  and  each  dragoon 
shall  furnish  himself  with  a  serviceable  horse,  at  least  fourteen 
and  a  half  hands  high,  a  good  saddle,  bridle,  breastplate,  crup- 
pers, and  valise,  a  pair  of  boots  and  spurs,  one  pair  of  pistols 
and  holsters,  the  holsters  to  be  covered  with  bear  skin,  a  sword, 
and  cartouch  box  to  hold  twelve  cartridges  for  pistols ;  and 
the  field  officers  and  commissioned  officers  shall  reside  within 
the  brigade,  regimental,  or  troop  district  in  which  they  respec- 
tively command;  there  shall  also  be  to  each  regiment  of  cav- 
alry one  adjutant,  one  quartermaster,  one  paymaster,  one 
surgeon  with  the  rank  and  pay  of  a  first  lieutenant,  and  one 
surgeon's  mate  with  the  rank  and  pay  of  a  second  lieutenant, 


Chap.  70.]  militia.  415 

to  be  appointed  by  the  commanding  officer  of  each  regiment; 
the  commissioned  officers  of  troops  of  cavalry  shall  be  recom- 
mended by  the  field  officers  of  the  regiment  to  which  they 
belong,  and  commissioned  by  the  governor.  Provided,  Iioiv- 
ct>er,  that  whenever  a  troop  of  cavalry  shall  be  formed  in  any 
brigade  where  there  is  not  a  sufficient  number  of  troops  to 
form  a  regiment,  the  officers  of  such  troop  shall  be  recom- 
mended by  the  brigadier-general  and  commissioned  by  the 
governor.  All  non-commissioned  officers  of  each  troop  shall 
be  appointed  by  the  captain  of  such  troop ;  all  commissioned 
officers  shall  take  rank  according  to  the  date  of  their  commis- 
sions, and  when  two  or  more  of  equal  grade  bear  the  same 
date,  then  their  rank  shall  be  determined  by  lot,  to  be  drawn 
by  them  before  the  commanding  officer  of  the  regiment  to 
which  they  belong. 

43.  Eacii  troop  of  cavalry  shall  muster  at  least  once  in  every  Troops  of  cav- 
three  months,  at  such  time  and  place  as  the  captain  or  com-  nl^'^teT^&'how 
manding  officer  of  such  troop  shall  direct,  and  the  captain  i-ctmns'mnde. 
shall  make  a  true  return  of  his  troop  to  the  commanding  offi- ,Y'!°/''.,';°"'- 
cer  01  the  regunent  to  which  he  may  belong,  on  or  before  the  mustering  with 
first  day  of  September  in  every  year,  under  the  jjenalty  of 'g ''^"l^'"^ 
thirty  dollars  for  each  neglect.  Provided,  hou-cver,  such  return  — i844,'c.'38," 
shall  be  made  to  the  brigadier-general  where  there  is-  no  regi-  ^'  ^' 

meiit  of  cavalry  in  the  brigade.  The  troops  of  cavalry,  when 
attending  the  general  muster  of  the  regiment  or  battalion  of 
infantry,  shall  be  under  the  command  of  any  field  officer  of  the 
cavalry,  if  present  on  parade,  except  on  review  days,  when 
ordered  by  the  major-general,  adjutant-general,  or  brigadier- 
general  ;  and  at  the  reviewing  of  the  regiment  of  cavalry,  when 
ordered  by  the  colonel  thereof,  the  cavalry  shall  then  be  under 
the  command  of  the  oflicers  of  the  cavalry  only,  except  a  gen- 
eral officer  shall  be  present  on  parade. 

44.  The  field  officers  of  cavalry,  once  in  every  two  years.  Field  officers  of 
shall  review  the  troops  of  cavalry,  composina:  their  reeiments,  <^?vairy  to  re- 

1  ».'io  o7  view  <ind  insiko 

at  some  place  most  convenient  in  the  brigade,  to  be  desig-  returns.— e!  s. 
nated  by  a  majority  of  the  commissioned  officers  of  the  regi-  =•  ''^'^-  **■ 
ment,  at  such  time  as  the  commanding  officer  of  the  regiment 
shall  appoint;  of  which  at  least  thirty  days'  notice  shall  be 
given  to  the  commanding  officers  of  the  several  troops.  The 
commanding  officer  of  each  regiment  of  cavalry  shall,  once  in 
every  year,  on  or  before  the  first  day  of  October,  make  a  just 
and  full  return,  after  the  form  prescribed  by  the  adjutant-gen- 
eral, of  all  officers  and  dragoons  under  his  command,  and  their 
equipments,  to  the  brigadier-general  to  whose  brigade  the  said 
regiment  l^elongs;  and  shall  also  transmit  to  the  adjutant-gen- 
eral, on  or  before  the  fifteenth  day  of  November  in  every  year, 
a  duplicate  of  such  returns,  and  at  the  bottom  of  the  same 
shall  state  when  his  regiment  or  the  several  troops  composing 
it,  were  last  reviewed  by  the  brigadier  and  major-generals. 

45.  A  majority  of  the  commissioned  officers  of  each  troop,  Cavairj-courts- 
and  a  majority  of  the  commissioned  officers  of  each  regiment,  '"'"""i '<> ''e 


416 


[Chap.  70. 


hcUi— R.  S.  c. 
73,  s.  ib. 


Fines  of  caval- 
ry officers  and 
privates,  same 
as  in  infantrv. 
— R.  S.  c.  73, 
s.  46. 


How  cavalry 
fines  appropri- 
,ated.— R.  S.  c. 
73,  s.  47. 


Duties  of  adju- 
tants of  regi- 
ments.— R.  S. 
c.  73,  s.  48. 


Certain  sec- 
tions of  tliis 
cluiptor  to  ap- 
plv  to  cavalry. 
— "R.  S.  c.  73, 
s.  49. 


immediately  after  their  respective  troop  or  regimental  musters, 
shall  hold  troop  or  regimental  courts-martial,  in  the  same  man- 
ner, and  the  courts  shall  have  the  same  power,  duties,  and 
authorities,  and  shall  be  governed  by  the  same  rules  and  regu- 
lations as  the  company  or  regimental  courts-martial  of  the 
infantry  herein  before  prescribed.  Provided,  however,  that  the 
delinquents  of  each  troop  of  cavalry,  at  any  regimental  parade, 
shall  be  heard,  and  either  fined  or  excused,  at  the  troop  court- 
martial  next  succeeding  such  regimental  muster  or  review;  and 
the  troop  courts-martial  shall  make  returns  to  the  next  suc- 
ceeding regimental  court-martial  of  their  proceedings,  and  of 
all  moneys  by  them  caused  to  be  made,  to  be  disposed  of  as 
herein  directed. 

46.  The  fines  of  the  officers,  non-comtnissioned  officers,  and 
privates  of  the  troops  and  regiments  of  cavalry,  for  not  holding 
musters,  not  attending  musters,  parades,  and  reviews,  or  not 
being  armed  and  equipped  as  required  by  law,  shall  be  the 
same  as  herein  before  prescribed  for  officers,  non-commissioned 
officers,  and  privates  of  the  infantry  in  similar  cases. 

47.  All  fines  and  forfeitures  incurred  by  the  cavalry  officers 
or  privates,  and  not  herein  particularly  appropriated,  shall  be 
applied  to  the  purposes  of  first  buying  trumpets,  and  then  at 
the  disposal  of  the  regimental  courts-martial,  to  the  use  and 
benefit  of  the  troop  whence  the  same  arose.  Those  fines,  paid 
by  the  field  and  statT  officers,  and  not  particularly  appropriated, 
shall  be  equally  divided  among  the  troops  composing  the  regi- 
ment to  which  they  respectively  belong;  all  other  fines  and 
forfeitures  shall  be  appropriated  and  divided,  at  the  discretion 
of  the  regimental  courts-martial,  for  the  promotion  and  ad- 
vancement of  military  discipline. 

48.  The  adjutant  of  the  regiment  shall  attend  the  regimental 
parade,  and  receive  and  execute  such  orders  as  the  command- 
ing officer  may  deem  expedient :  and  the  said  adjutant  shall 
take  an  oath  of  office,  in  open  court-martial,  and  from  time  to 
time  call  upon  and  bring  suit  against  all  delinquent  captains, 
and  other  commissioned  officers,  below  the  grade  of  captain, 
for  fines  and  penalties  by  them  incurred,  and  wliich  are  not 
otherwise  especially  provided  for  in  this  chapter,  and  shall  re- 
ceive and  account  for  the  same  annually  with  the  paymaster 
of  the  regiment;  for  which  services  the  adjutant  shall  be  allowed 
a  reasonable  compensation,  to  be  paid  out  of  the  fines  so  col- 
lected, by  order  of  the  court-martial ;  and  in  case  any  adjutant 
shall  fail  to  attend  and  perform  his  duty  as  herein  required,  he 
shall  forfeit  and  pay  the  sum  of  one  hundred  dollars. 

49.  The  following  sections  of  this  chapter  in  relation  to  the 
infantry,  are  declared  to  apply  to  the  cavalry,  namely  :  so  much 

•  of  the  eleventh,  twelfth,  and  thirty-eighth  sections  as  relates  to 
officers  under  the  grade  of  lirigadier-general ;  also  the  thirteenth, 
fourteenth,  twenty-fifth,  twenty-sixth,  twenty-seventh,  twenty- 
eighth,  thirtieth,  thirty-first,  thirty-fourth,  thirty-ninth,  fortieth, 
and  forty-first  sections. 


CUAP.  70.]  MILITIA,  417 

50.  No  )Derson  shall  be  commissioned  in  any  troop  of  cav-  Commission  in 
airy,  unless  the  number  is  such  as  shall  be  prescribed  by  this  cl'ra'Tso!^^' 
chapter.  1842,' c!  57,'s.  8. 

51.  Out  of  the  militia  there  may  be  enrolled  as  many  vol-  Voiuntecrcom- 
unteer  companies  of  artillery,  light-infantry,  grenadiers,  or  riile-  lery,  fightJii-' 
men,  as  may  see  fit  to  form  themselves  into  such,  each  com-  fantry,  gi-ena- 
pany  to  consist   of  thirty-two    privates,  four   sergeants,  four  mwfmay'be' 
corporals,  one  captain,  and  three  lieutenants  (the  third  lieu-  formed.— R.  s. 
tenant  to  be  the  ensign);  and  persons  subject  bylaw  to  be  1842,' c.  57J  sTb. 
enrolled  in  the  militia  may  join  any  volunteer  company  in  a 
regiment  adjoining  that  in  which  they  reside. 

52.  The  said  companies  shall  be  clotlied  in  regimentals,  to  May  choose 

be  furnished  by  themselves,  of  their  own  choice  and  fashion,  To'be"uud™'    ■ 
and  shall  attend  battalion  and  regimental  reviews,  parades,  tiie  coramander 
and  drills,  whenever  ordered  by  the  colonel  of  the  county  or  °,Ki''do^auTy'as 
commanding  officer  of  the  regiment  to  which  they  respectively  otiier  compa- 
belong  ;  shall  be  subject  to  his  orders,  and  liable  to  the  same  '■^s^Tlf^  ^'  °' 
fines  and  penalties  for  the  non-performance  of  military  duty, 
misdemeanors  in  office,  or  dereliction  of  duty,  as  the  militia 
are  subjected  to  by  law. 

53.  Whenever  there  may  be  a  sufficient  number  of  volun-  Regiments  of 
teer  companies,  in  any  one  brigade,  to  form  a  regiment,  con-  pal"ermay°be" 
taining  as  many  companies  as  five,  the  commissioned  officers  formed. 

of  such  companies  may  meet  together,  at  such  time  and  place  of,Vow  chosen. 
as  a  majority  of  them  may  designate,  and  proceed  to   elect —R- S.  0.  73, 
(a   majority  of  said  commissioned  officers   being  present)   a  ^'     ' 
colonel,  lieutenant-colonel,  and  major,  the  result  of  said  elec- 
tion to  be  certified  by  the  senior  officer  present  at  said  meeting, 
(who  shall  also  preside  thereat,)  to  the  brigadier-general  of  said 
brigade,  who  shall  lay  said  result  before  the  governor,  and  he 
shall  forthwith  issue  commissions  to  said  officers. 

54.  The  captains  and  lieutenants  of  said  companies  shall  captains,  and 
be   elected  by  a  majority  of  the  members   of  their  respective  o'her  officers, 
companies,  and  the  non-commissioned  officers  of  said  compa — r.  s.  c.  73,  s! 
nies  shall  be  appointed  by  the  commissioned  officers  thereof.      ^''• 

55.  The  captain  or  commanding  officer  of  each  company  Company  to 
of  artillery,  light-infantry,  grenadiers,  or  riHemen,  shall,  at  least  "ree'^mont'hs!" 
once  in  three  months,  muster  his  men  at  such  time  as  he  may  Way  iidopt 
direct,  and    at  such  place  as   may  be  agreed  on  by  a  majority  povernme'nt.'— 
of  the  company;  and  each  company  may  adopt  rules  and  reg-  R.S.c.73,  s.65. 
ulations  for  their  own  government,  not  inconsistent  with  the 

laws  and  constitution  of  the  State  and  of  the  United  States. 

56.  Whenever  a  regiment  of  volunteers  shall  be  formed  and  Officers  ojvol- 
officered,  as  herein  before  required,  annual  returns  shall  be  m'entstomai<e 
made  to  the  brigadier-general  and  adjutant-general,  as  required  ''^'^o"'"'^'^' ''■ 
to  be  made  by  the  field  officers  of  infantry.  •     >  •     ■ 

57.  No  person  who  shall  procure  himself  to  be  enrolled  in  Volunteers, &c. 

r-        ,  ■  1 1  T    1  j_  ■     c       ,  T  '  n       not  to  return  to 

any   company  ot  artillery,  light-infantry,  grenadiers,  or  rifle- i„|-a„try  but  by 
men,  in   any  troop  of  cavalry  or  in   any  volunteer  company,  remission,  &c. 
shall  be  permitted  to  return  to  the  infantry,  except  by  the  con- 
sent of  the  field  officers  of  the  regiment,  or  by  removal  out 


418  MILITIA.  [Chap.  70. 

of  the  county,  regiment,  or  battalion,  wiicrein  such  person  was 
enrolled;  and  it  shall  be  suIFicient  for  any  person  to  be  enrolled 
and  approved  by   the  captain   of  said  volunteer  company  or 
troop  of  cavalry,  without  the  intervention  of  any  other  ofhcor. 
hifonto-rtiii'"    Pi'oi-idcd,  nei-ei-lheless,  that  any  person  enrolling  himself  with 
they  equip.—    any  Captain  of  a  volunteer  company  or  troop  of  cavalry,  shall 
1842", c. 57,1'."';  ^^  Subject  to  perform  all  the  duties  and  exercises  in  the  infan- 
1846',  c.  38,  s.  6.'  try,  and  under  the  officers  thereof,  until  such  person  so  enroll- 
ing himself    shall    fully   and   completely  equip    himself  with 
clothing  and  arms  required  and  settled  on  for  such  company 
or  troop,  and  a  certificate  to  that  eftect  procured  from  the  cap- 
tain with  whom  he  has  enrolled,  and  produced  to  the  captain 
under  whom  such  person  so  served  before  such   enrolment, 
or  his  successor  in  office. 
Officers  of  vol-      58.    Whenever  there  may  be  formed  a  regiment  of  volun- 
mentYtofe-      teers,  as  herein  before  provided,  the  commanding  officer  shall 
73°^'^" ss''' ^' "'  ''^^^^^^  '''^  regiment,  as  often  as  the   colonel  or  commanding 

'  ■     ■  officers  of  infantry  may  be  required  to  do  by  law. 

fieid"officers°of  ^^'  Whenever  a  vacancy  shall  occur  by  death,  resignation, 
volunteer  regi-  or  otherwise,  among  the  field  officers  of  said  regiment,  the 
fiUe'd.— r'.'s.  c.  offi'^'^r  highest  in  command  shall  notify  the  brigadier-general 
73,  s.  59.  thereof,  who  shall  call  the  commissioned  officers  of  said  regi- 

ment together,  at  some  convenient  place,  for  the  purpose  of 
electing  some  one  to  fill  said  vacancy ;  and  may  either  detail 
some  officer  to  superintend  said  election,  or  may  make  it  the 
duty  of  the  officer  highest  in  rank  that  may  be  present  to  at- 
tend thereto,  and  transmit  to  him  the  returns  of  said  election  ; 
and  the  said  general  shall  transmit  the  result  of  said  election 
to  the  governor,  who  shall  forthwith  commission  the  officer  so 
elected. 
t^onl'^concern-        ^^-    Every  sccHon   of  this  chapter  relative  to  the  infantry, 
ing infantry,     which  Can  be  applied  to  the   govenmient  and  disciplining  of 
tuiely,'"&c.—     *'^^  artillery,  light-infantry,  grenadiers,  or   riflemen,  or  which 
K.S.o'.73,3.60.  can  by  construction  be  applied  to  them  or  either  of  them,  shall 
be  in  force  for  the   government  and   disciplining  of  the  artil- 
lery, light-infantry,  grenadiers,  and  riflemen  respectively. 
General  courts-      61.    The  governor  shall  appoint  general  courts-martial  for 
appointed  ana  the   trial  of  major-gcnerals ;  major-generals,  each  within    his 
''^'•^'•— I'- S- c.  own  division,  shall  appoint  division  courts-martial  for  the  trial 
'  '     '  of  brigadier-generals  ;  brigadier-generals,  each  within  his  own 

brigade,  shall  appoint  brigade  courts-martial  for  the  trial  of 
all  oflicers  above  the  grade  of  captain;  and  in  like  manner  the 
colonel  or  commandant  of  each  regiment  or  battalion  shall 
appoint  regimental  or  battalion  courts-martial,  for  the  trial  of 
all  commissioned  olhccrs,  under  the  grade  of  a  field  officer;  in 
every  case  the  olficer  ordering  the  court-martial  shall  can.se  the 
officer  accused  to  bo  arrested,  to  be  furnished  with  a  copy  of 
the  charges  against  him,  and  to  be  notified  of  the  time  and 
nffi        fi       place  appointed   for  his  trial. 

seiecte'^^.— K.  ^^  62.  "When  a  court-martial  is  ordered,  the  officer  ordering  it 
S.  C.73,  s.  C2.   shall  appoint  the  president,  judge  advocate,  and  provost-mar- 


Chap.  70.]  militia.  419 

slial,  and,  if  it  be  a  general  court-martial,  orders  shall  be  issued 
to  such  divisions  as  in  the  opinion  of  the  governor  may  most 
conveniently  furnish  the  members  thereof;  if  it  be  a  division 
court-martial,  orders  shall  be  issued  to  such  brigades  as  in 
the  opinion  of  the  officer  ordering  it  may  most  conveniently 
furnisli  the  members  thereof;  if  it  be  a  brigade  court-martial, 
orders  shall  be  issued  to  such  regiments  in  the  brigade  as  in 
the  opinion  of  the  officer  ordering  it  may  most  conveniently 
furnish  the  members  of  it ;  and  if  it  be  a  regimental  com-t- 
martial,  the  otTicer  ordering  it  shall  appoint  the  members. 

63.  The    president  of  a  general  court-martial  shall  not  be  Ofwiiatrunk 
under  the  rank  of  a  major-general;  and   the  court    shall  be  ^l^j^ji'^J^^jj  g 
composed  of  two  brigadier-generals  and  ten  field  otTicers,  as  c.  73,  s.  63. 
members,  six  of  whom  shall  be  of  dilTerent  divisions;  the  pres- 
ident of  a  division  court-martial  shall  not  be  under  the  grade 

of  a  brigadier-general,  and  the  court  shall  be  composed  of 
twelve  field  officers  as  members,  six  of  whom  shall  be  of  a  dif- 
ferent brigade  ;  the  president  of  a  brigade  court-martial  shall 
not  be  under  the  rank  of  a  colonel,  and  the  court  shall  be  com- 
posed of  twelve  officers  as  members,  to  be  taken  from  the  brig- 
ade, none  of  whom  shall  be  under  the  rank  of  captain  ;  the 
president  of  a  regimental  court-martial  shall  not  be  under 
the  grade  of  a  field  officer,  and  the  court-martial  shall  be  com- 
posed of  a  majority  of  the  officers  of  the  regiment  as  members. 

64.  Whenever  the  commanding  officer  of  a  division,  brig- Officers  for 
ade,   regiment,  or  battalion  shall   be   ordered  to   furnish  any  re"uiarh-"de-*^ 
officer  as  a  member  or  supernumerary  of  a  court-martial,  such  t;)Ued.— R.  s. 
officer  shall  be  regularly  detailed  from  the  roster  of  the  division,  '^'  '^'  ^'  ®*" 
brigade,  regiment,   or  battalion,    by  the  commanding    officer 

thereof  forthwith,  after  receiving  orders  therefor.  Provided, 
that  in  case  of  sickness,  inability,  or  absence  of  any  officer 
whose  turn  it  may  be  to  serve  on  a  court-martial,  the  detailing 
oflicer  shall  certify  such  circumstance  to  the  officer  who  or- 
dered the  court-martial,  and  detail  the  officer  next  in  succes- 
sion. 

65.  Officers  ordered  to  be  detailed  to  serve  on  courts-martial  How  detailed, 
shall  be  detailed  in  the  followins;  manner :  Brigadier-generals,  ~^i  ^-  "■  '^' 

o  o  o  s.  65. 

by  the  major-generals  of  divisions,  from  the  division  rosters; 
colonels,  lieutenant-colonels,  and  majors,  by  the  commanding 
officers  of  brigades,  from  the  brigade  rosters ;  captains  and 
subalterns,  by  the  commanding  officers  of  regiments  and  bat- 
talions, from  the  regimental  or  battalion  rosters. 

66.  All  courts-martial  for  the  trial  of  otTicers  shall  be  con-  Courts-martiui 
stituted  of  a  president,  judge  advocate,  and  provost-marshal,  '"J^^'  <jf>"stitiit- 
together  with  the  number  of  members  prescribed  by  the  pro- 73J  s.  cs." 
visions  of  this  chapter;  and  the  officer  ordering  a  court-martial 

may,  at  his  discretion,  order  a  number  of  officers  to  be  detailed 
as  suiK'rnumeraries,  in  addition  to  those  intended  to  serve  as 
members,  to  attend  the  organization  thereof,  and  in  case  there 
should  be  any  vacancy,  the  judge  advocate  shall  fill  such 
vacancy  from  the  supernumeraries,  beginning  with  the  highest 
in  grade  and  proceeding  in  regular  rotation. 


420  MILITIA.  [Chap.  70. 

Officers  of  67.    All  officers  on  a  coiu't-martial  shall  take  rank  by  sen- 

lioNv  to"nluk.'  ioi'ity  of  commission,  without  regard  to  corps;  and  before  any 
To  be  sworn.—  court-martial  shall  proceed  to  the  trial  of  any  officer,  the  judge 
67.  ''^'  ''■  advocate  shall  administer  to  the  president  and  each  of  the 
members  the  following  oath:  —  "You,  A.  B.,  do  swear  that 
you  will  well  and  truly  try  and  determine,  according  to  the 
evidence,  the  matter  now  before  you  between  the  State  of 
North  Carolina  and  the  prisoners  to  be  tried,  and  that  you  will 
duly  administer  justice  according  to  the  militia  laws  of  North 
Carolina,  without  partiality,  favor,  or  atFoction  ;  and  yon  do 
further  swear,  that  you  will  not  divulge  the  sentence  of  the 
court,  until  it  shall  be  published  by  the  proper  authority; 
neither  will  you  disclose  the  vote  or  opinion  of  any  particular 
member  of  the  court,  unless  you  are  required  to  give  evidence 
thereof  as  a  witness  by  a  court  of  justice,  in  due  course  of  law  : 
so,  help  you  God."  And  the  president  shall  administer  to  the 
judge  advocate  the  following  oath  :  —  "  You,  A.  B.,  do  swear, 
that  you  will  faithfully  and  impartially  discharge  the  duty  of 
judge  advocate  on  this  occasion,  as  well  to  the  State  ns  to  (he 
accused  ;  and  that  you  will  not  disclose  the  vote  or  opinion  of 
any  particular  member  of  the  court,  unless  required  to  give 
evidence  thereof  as  a  witness  by  a  court  of  justice  in  due 
course  of  law,  nor  divulge  the  sentence  of  the  court  to  any  but 
to  the  proper  authority,  until  it  shall  be  duly  published  by  the 
same:  so,  help  you  God." 
Witnesses  how  68.  The  judge  advocate  of  any  court-martial,  constituted 
ii.  S.  c.  isjT.  according  to  the  provisions  of  this  chapter,  may  issue  a  sum- 
68-  mons,  in  the  nature  of  a  subpoena  in  criminal  cases,  directed 

to  the  provost-marshal,  to  summon  witnesses  for  the  State, 
and  the  accused ;  and  the  persons  summoned  by  him  shall  be 
bound  to  attend  and  give  evidence  before  the  court-martial, 
under  the  penalty  of  forty  dollars,  to  be  recovered  by  the 
party  aggrieved,  unless  the  witness  can  prove  his  inability  to 
attend. 
How  sworn.—  69.  All  witnesses  shall  be  sworn  by  the  judge  advocate, 
E.  S.c.  73,s.60.  before  they  give  their  evidence,  as  in  criminal  cases,  accord- 
ing to  the  following  form:  —  "You,  A.  B.,  do  swear,  that  the 
evidence  you  will  give  the  court  in  the  case  between  the  State 
and  C.  D.  shall  be  the  truth,  the  whole  truth,  and  nothing  but 
the  truth  :  so,  help  you  God." 
rtuies  for  pov-  70.  All  ti'ials  by  court-martial  shall  be  carried  on  in  the  day- 
oourts-martial.  time,  between  the  hours  often  o'clock  in  the  morning  and  five 
o'clock  in  the  evening;  and  when  the  votes  shall  be  called  for 
on  any  question,  the  judge  advocate  shall  begin  with  the 
youngest  in  commission,  and  proceed  regularly  to  the  oldest. 
And  at  all  courts-martial,  unless  two  thirds  of  the  members 
agree  that  the  accused  is  guilty,  the  judge  advocate  shall  record 
his  acquittal.  And  all  courts-martial,  authorized  and  ap- 
pointed in  pursuance  of  the  military  laws  of  the  State,  shall 
liave  full  power  and  authority  to  preserve  order  during  their 
session,  and  may  imprison  in  the  county  jail,  for  the  space  of 


Ch.VP.    70.]  MILITIA.  421 

eight  hours,  all  persons  who  shall,  in  the  presence  of  the  court-  Penalty  on  offi- 

martial,  behave  in   a  disorderly   and   contemptuous    manner,  attend"— if 's 

None  but  a  commissioned  otticer  shall  sit  in  any  court-martial,  c.  73,  s.  70.— 

and  if  any  officer  shall  fail  to  attend  any  court-martial,  when  is***,  c.  38,  s.  4. 

notified  so  to  do,  he  shall  be  fined,  if  above  the  rank  of  colonel, 

not  less  than  twenty  dollars ;  if  of  the  rank   of  colonel  and 

above  that  of  captain,  not  less  than  fifteen  dollars ;  if  of  the 

rank  of  captain  and  under,  not  less  than  ten  dollars,  unless  he 

renders  a  sufficient  excuse,  to  be  judged  of  by  the  court-martial 

from  which  he  may  be  absent ;  and  if  any  officer  shall  take  his 

seat  in   court-martial  without  being  in   uniform,  he  shall  be 

fined,  at  the  discretion  of  the  court,  not  to  exceed  five  dollars, 

unless   he   furnishes   said  court  a  sufficient  excuse   for  such 

delinquency. 

71.  The  judge  advocate,  upon  all  trials,  shall  state  impar-  Dutyof  judje 
tially  to  the  court  the  evidence,  both  for  and  against  the  ac-  s.  c?T3,'*s77i! 
cused,  shall  take  in  writing  the  evidence,  both  for  and  against 

the  accused,  and  minute  down  the  proceedings  of  the  court,  all 
of  which,  with  the  judgment  or  sentence  of  the  court  there- 
upon, authenticated  by  his  signature  and  that  of  the  president 
of  the  court,  with  the  papers  read  at  the  trial,  or  copies  thereof 
certified  by  him,  he  shall  transmit  under  seal  to  the  officer  who 
ordered  the  court,  and  all  motions  and  objections  to  evidence, 
whether  on  the  part  of  the  State  or  the  accused,  and  the 
opinion  of  the  judge  advocate  on  questions  of  law,  made  at  the 
trial,  shall  be  stated  in  writing,  and  the  statement  of  the  com- 
plaint and  the  defence  shall  be  made  in  writing,  so  that  a  full 
view  of  the  trial  may  be  had  by  the  officer,  whose  duty  it  is  to 
approve  or  disapprove  of  the  proceedings;  and  all  the  original 
proceedings  and  judgments  or  sentences  of  all  courts-martial, 
appointed  according  to  the  provisions  of  this  chapter,  after 
having  been  approved  or  disapproved  by  the  officer  ordering 
them,  shall  by  him,  as  soon  thereafter  as  convenient,  be  trans- 
mitted to  the  adjutant-general  of  the  State,  to  be  deposited 
and  preserved  in  his  office;  and  the  party  tried  by  any  court- 
martial,  as  aforesaid,  upon  request  by  himself,  or  by  any  per- 
son properly  authorized,  at  the  adjutant-general's  office,  shall 
be  entitled  to  a  copy  of  the  original  record,  certified  as  afore- 
said, of  the  proceedings  and  sentence  of  the  court,  he  paying 
reasonably  for  the  same. 

72.  When  any  officer  shall  be  arrested  and  notified  to  attend  Troceedincs 
any  court-martial,  which  may  be  ordered  for  his  trial,  and  shall  nfreMeVre-'"* 
refuse  or  neglect  to  attend  the  same,  the  said  court  shall  take  fusing  to  at- 
up  the  charges  and  specifications  alleged  against  him,  provided  c?'73  7^72. 
he  has  been  served  with  a  copy  thereof,  and  proceed  to  trial  in 

the  same  manner  as  if  he  were  present. 

73.  If  any  person  shall  wilfully  and  corruptly  swear  falsely  Perjury  before 
before  any  court-martial,  touching  and  concerning  any  matter  ™rl*s"™?3^' 
or  thing  cognizable  before  such  court-martial,  he  shall,  on  con-  s.  73. 
viction  thereof,  be  liable  to  the  pains  and  penalties  of  perjury; 

and  in  all  cases,  to  delinquents  and  witnesses,  oaths  shall  be 
36 


422  MILITIA.  [Chap.  70. 

administered  by  the  judge  advocate  or  presiding  officer  of  said 
court-martial. 
For  what,  offi-       74.  Dishonest  or  ungentlemanly  conduct  in  an  officer  shall 
— R?sVc!73  s.  ^^  punished  by  cashiering,  and  disabling  him  from  ever  hold- 
"*•  ing  a  military  commission. 

Detachments         75.  Upon  any  requisition  by  the  United  States  for  a  detach- 
IJiiited  State     ™^"t  ^^  ^he  militia  from  this  State,  every  captain  of  infantry 
service.  — R.     shall   enter  upon  his  roll  all  able-bodied  free  white  men,  be- 
S.  c.  73, 8. 75.   tween  the  ages  of  eighteen  and  forty-five  years,  except  such  as 
are  exempted  by  the  second  section  of  the  act  of  congress  of 
one  thousand  seven  hundred  and  ninety-two,  and  except  the 
judges  of  the  superior  courts  of  law  and  equity,  and  ministers 
of  the  gospel,  regularly  ordained,  within  his  company  district, 
and  they  shall  be  subject  to  draft.     Provided,  that  notiiing  in 
this  chapter  shall  be  understood  to  subject  persons,  heretofore 
exempted,  to  perform  ordinary  militia  duty  :  and  nothing  herein 
contained  shall  be  construed  to  conilict  with  the  provisions  of 
the  third  section  of  this  chapter. 
Substitutes  re-      76.  Each   captain  or  commanding  officer  of  a  company  of 
cf^s^.Te. "   '  rnilitia,  detached  as  part  of  the  requisition  under  the  authority 
of  the  United  States,  shall  receive  and  enroll  in  the  place  and 
stead  of  any  person  drafted  to  serve  in  such  company,  any 
able-bodied  free  white  citizen  to  serve  as  a  substitute  for  such 
persoti  so  di-afted. 
Vacancies  in         77.  If  any  commissioned  officer,  under  the  grade  of  a  field 
under  rank  of    officer,  appointed  to  command  in  any  detachment  from  this 
field  officers,      State,  Under  the  authority  of  the  United  States,  shall  die,  re- 
—  R.™.''c.'73     sign,  or  remove  out  of  the  regiment  to  which  he  belongs,  the 
s-  ?7.  colonel  commandant  of  the  regiment,  to  which  such  officer 

belonged,  shall  recommend  a  proper  person,  resident  within 
the  bounds  of  such  regiment,  to  be  commissioned  by  the  gov- 
ernor to  fill  such  vacancy. 
A  militia-man,       78.  In  all  cases  where  a  militia-man  shall  have  performed  a 
exompt,''&'c!^'  *®'^™  °f  service,  either  as   a  volunteer  or  drafted  militia-man, 
unless,  Jec—    whether  upon  the  requisition  of  the   United  States  or  of  this 
K^S.  c.  73,s.     State,  he  shall  not  be  hable  to  stand  a  second  draft,  until  the 
whole  of  the  militia  witliin  his  company  district  shall  have 
performed  a  like  term  of  duty. 
PenaUy  for  re-      79.  When  militia-men  are  ordered  out  on  duty  in  aid  of  the 
d"uty°when  or-  civil  authority,  either  to  guard  a  jail  or  for  any  other  purpose, 
deredoutby     and  shall  neglect  or  refuse  to  attend,  agreeable  to  orders,  each 
— ^K.  s!c.  "3,^  i'^"^'^  shall  be  fined,  at  the  discretion   of  his  company  court- 
s' 'i'J-  martial,  not  exceeding  five  dollars  for  each  day  he  shall  fail  to 

do  duty. 
Seven  justices       80.  In  all  cases  of  insurrection  among  slaves  or  free  per- 
mliitiain         sons  of  color  either  in  any  county  of  this  State,  or  in  an  ad- 
iiivasions  or  in- joining  State,  or  in   case  of  invasion,  seven  iustices  of  the 

surrections. —  •"  '^ ,  •         ji  .  •        -i.  j.   xl    ■       i- 

R.  S.  e.  73, 8.    peace,  deeming  the  emergency  to  require  it,  may  at  their  dis- 

8"-  cretion  require  in  writing  of  the  commanding  oflicer  of  their 

county  to  call  out  the  militia  under  his  command,  and  any 

volunteer  company  or  companies  in  said  county,  in  the  ab- 


Chap.  70.]  mlitu.  423 

sence  of  the  officer  who  is  entitled  to  the  command,  to  sup- 
press or  repel  such  insurrection  or  invasion,  or  to  protect  the 
inhabitants  of  their  county  from  the  danger  to  be  apprehended; 
and  may  again  require  of  the  said  officer  to  dismiss  his  men 
when  they  think  the  danger  is  over,  and  the  commanding  offi- 
cer  may  dismiss  in  like  manner. 

81.  The  commanding  officer  forthwith  shall  order  out  the  Duty  of  com- 
militia,  in  the  way  he  shall  judge  best  to  effect  the  purpose  ™'^';'|i'«  Ijtii- 
desired;  he  may  make  such  contracts,  as  he  may  thiiik  most  requisitiun.'- 
to  the  interest  of  the  State,  for  the  requisite  ammunition,  and  f^  S-"^  "a.  *• 
appoint    some  one  a  commissary  to    provide  the  necessary 

rations  for  the  subsistence  of  the  men  while  in  service,  and 
immediately  on  the  discharge  of  the  men,  the  commanding 
officer  may  dispose  of  any  surplus  ammunition  or  provis- 
ions, for  the  benefit  of  the  State  ;  and  all  expenses  hereby 
incurred  shall  be  properly  certified  by  said  officer  and  forward- 
ed to  the  governor,  and  shall  be  paid  by  the  State  after  under- 
going an  examination  and  approval  by  the  governor,  treasurer, 
and  comptroller,  who  shall  be  a  board  for  that  purpose. 

82.  The  commanding  officer  of  any  regiment,  as  soon  as  he  Commanding 
has  called  out  the  militia  under  the  provisions  of  the  eighty-  outftoMtuy 
first  section  of  this  chapter  shall  immediately  send  an  express  his  superior." 
to  the  brigadier  or  major-general  of  his  brigade  or  division,  in- 
forming him  of  that  fact,  and  of  any  other  official  facts  he  may 

be  in  possession  of,  and  continue  to  do  so  from  time  to  time ; 

and  the  brigadier  or  major-general  shall  immediately  apprise  Superior  to  no- 

the  governor,  either  by  express  or  mail,  as   he  may  judge  the  emor''l^E% 

emergency  requires,  of  all  the  circumstances  ;  in  the  mean  time  c.  73,'s.  82.' 

such  general  officer  shall  pursue  the  most  effectual  measures 

for  repelling  such  invasion,  or  suppressing  such  insurrection, 

and  the  militia  thus  called  out  shall  be  armed  according  to 

law. 

83.  When  there  may  be  outlawed  or  runaway  negroes,  com-  Three  jiistices 
mitting  depredations,  or  in  any  way  alarming  the  citizen  of  ™?y.°'''^^"^""' 
any  county,  or  where  the  guarding  of  a  jail  is  necessary,  three  press  ou"!  a  wed, 
justices  of  the  peace,  certifying  the  same  in  writing  and  re-  "[^^g'^^R-'s 
questing  the  officer  in  command  of  their  county,  such  officer  c.^m.^'s.  83. 
shall  effect  the  object  set  forth  in  said  request  of  the  justices, 

and  the  expenses  of  the  militia  so  called  out,  shall  be  paid  by 
the  court  of  the  county,  who  may  lay  a  sufficient  tax  to  pay 
said  militia,  at  the  same  rates  as  the  regiilar  troops  of  the 
United  States  are  by  law  entitled  to,  when  in  actual  ser- 
vice. 

84.  The  militia  of  the  State,  both  officers  and  soldiers,  when  r■^y  of  miiitii., 
called  into  the  service  of  tiie  State,  shall  receive  the  same  pay  i"  service— R. 
and  rations,  as  when  called  into  the  service  of  the  United '^^  °' "''' ^*" 
States. 

85.  Every  officer  who  shall  refuse  or  neglect,  on  call  or  alarm  punishment 
given,  to  appear  at  such  times  and  places  as  shall  be  appointed  for  refusing  to 
by  his  commanding  officer,  shall,  on  conviction  before  a  court-  orKngh-en. 
martial,  be  cashiered  and  rendered  incapable  of  ever  after  hold-  —^-  S-  c.^rs, 


424  MiLiTu,  [Chap.  70. 

ing  a  military  appointment,  and  be  further  liable  to  pay  the 
sum  of  forty  dollars,  to  be  collected,  as  herein  directed;  and  if 
a  non-commissioned  olFicer  or  private,  he  shall  forfeit  and  pay 
the  sum  of  ten  dollars.     If  any  person  do  not  march  against 
the  enemy,  when   commanded,   by   himself  or  substitute,  or 
shall  refuse  or  neglect  to  do  his  duty  or  perform  the  services 
he  is  requested  to  perform  by  his  officer,  or  quit  his  post,  de- 
sert, or  mutiny,  the  commanding  officer  of  the  regiment  or 
corps  shall  order  a  court-martial  for  the  trial  of  such  ofl'ender; 
the  members  when  met  shall  individually,  before  they  proceed, 
take  the  following  oath :  "  I  swear  well  and  truly  to  try  and 
determine,  according  to  the  evidence  of  the  matter  before  me, 
between  the   State  and  the  person  now  to  be  tried :  so,  help 
me  God;"  and  they  shall,  on  trial  and  conviction,  order  pun- 
ishment on  the  ofl'ender,  according  to  the  articles  of  war  es- 
tablished for  the   regulation   of  the   army.     Provided,   such 
punishment  shall  not  extend  to  sentence  of  death,  except  in 
case  of  desertion  to  an  enemy,  or  mutiny. 
Punishment  for      86.  If  any  non-commissioned  officer  or  private  militia-man, 
S.  c.  73  sTse.    while  in  the  pay  and  service  of  the  State,  shall  wilfully  desert 
the  service  or  abandon  the  post  assigned  to  him,  without  being 
regularly  discharged,  or  permitted  by  an  officer  duly  author- 
ized for  that  purpose,  such  non-commissioned  officer  or  pri- 
vate, being  thereof  convicted  by  a  court-martial  having  juris- 
diction of  the  ofi'ence,  shall  be  adjudged  to  have  forfeited  the 
pay  and  emoluments  due  to  him  at  the  time  of  his  desertion, 
and  be  subject  to  a  fine  not  less  than  twenty  and  not  exceed- 
ing fifty  dollars,  and  imprisonment  not  exceeding  six  nor  less 
than  one  month,  at  the  discretion  of  the  court-martial ;  and, 
furthermore,  turned  over  to  serve  as  a  private  soldier  in  the 
regular  army  of  the  United    States,  at  the  discretion  of  the 
court-martial,  not  exceeding  double  the  term  of  time  which  he 
had  been  called  out  to  serve  in  the  militia  of  the  State. 
Field  officers  of      87.   Whenever  any  regiment  of  volunteers  out  of  the  militia 
m1n;i?in/e7-'"of  the  State,  shall  be  caUed  into  the  service  of  the  United 
vice  of  u.  S.,     States,  the  field  officers  of  such  regiment  shall  be  chosen  and 
•n^ieu'eiret^ed.    elected  by  the  persons,  private  soldiers  as  well  as  officers  of 
— 1S4C,  c.  37,    the   companies  who   compose  the  regiment ;  which   election 
'■   ■  shall  take  place  at  their  rendezvous,  a  majority  of  those  com- 

posing the  regiment  and  voting  being  requisite  to  a  choice  of 
such  field  officers. 
Election,  when      88.  As  soon  after  the  arrival  at  the  rendezvous  of  the  com- 
dueVed.— 1846    P^'iies  Composing  said  regiment,  as  the  captains  of  the  com- 
c.  37, 6.  2.         panics,  or  a  majority  of  them,  shall  deem  proper,  they  shall 
call  together  the  officers  and  privates  of  the  regiment,  and  pro- 
ceed to  the  election  of  field  officers  of  the  same,  the  captains 
superintending  said  election,  and  the  voting  to  be  by  ballot. 
Certificate  of         89.   Upon  such  an  election  taking  place,  the  captains  of  the 
'^•'^ hcd field offi-  Companies  composing  the   regiment,  or  a  majority  of  them, 
cersbycap-     shall  furnish  every  field  officer  so  elected  a  certificate  stating 
tains.  ^ijg  f^.^  Qf  jjij.  election,  and  the  oflice  to  which  he  is  elected ; 


Chap.  70.]  militia.  425 

find  upon  snch  certificate  being  presented  to  the  governor,  he 
shall  issue  to  such  person  the  commission  to  which  his  rank 
entitles  him.     Provided,  howecer,  that  if  any  regiment  shall  Return-,  imw 
be  required  by  the  general  government  to  rendezvous  at  ditter-  "citi',^,ont'rra- 
ent  places,  each  division  thereof  may  vote  at  their  respective  do^vous  iit  .lif- 
places  of  rendezvous,  under  the  superintendence  of  the  cap-  lYiT'c^'arili 
tains  present,  and  they  shall  transmit  to  the  governor  the  result 
of  such  election ;  and  the  persons  having  the  greatest  number 
of  votes  given,  shall  be  commissioned  by  the  governor,  accord- 
ing to  the  rank  to  which  they  are  respectively  entitled  ;  and  if 
any  two  or  more  of  the  persons  voted  for  should   have  the 
highest  and  equal  number  of  votes,  the  governor  shall  select 
one  of  the  persons  to  fall  the  office  so  voted  for. 

90.  When  any  regiment  having  rendezvoused  at  the  same  \^Tien  there  is 
place,  and  having  proceeded  to  vote  as  herein  before  provided ;  fson '" vernor 
and  there  should  be  a  tie,  the  captains  shall  transmit  to  the  to  select.— 
governor  the  result  of  such  election,  and  he  shall  select  from  ■'^''^' "•^"'^■*' 
those  having  the  highest  and  equal  number  of  votes,  the  per- 
son to  fill  such  office. 

91.  Whenever  any  volunteer  company  may  be  formed,  con-  How  voinntenr 
sistiiig  of  the  number  required  by  law  for  the  formation  of  |^°"P^"j!';*J"''-^' 
volunteer  comjmnies,  the  captain  of  such  company  shall  make  rated.— i848,c. 
known  in  writing  such  fact  to  the  colonel  commandant  of  the  ^^i^-^- 
regiment  in  which  such  company  may  be  formed ;  and  if  the 

colonel  shall  be  satisfied  that  the  statement  made  by  said  cap- 
tain is  true,  and  that  said  company  is  uniformed  and  equipped 
in  all  respects  as  required  by  law,  except  as  to  arms,  he  shall 
give  such  captain  a  certificate  in  writing,  setting  forth  the  fact; 
and  every  such  company  shall  be  entitled  to  make  all  such 
by-laws,  rules,  and  regulations  for  their  government  as  may  be 
deemed  necessary,  not  inconsistent  with  the  constitution  of 
the  State  or  of  the  United  States ;  and  shall  be  invested  with 
all  the  rights,  powers,  and  privileges  usually  incident  to  and 
belonging  to  volunteer  companies  which  are  incorporated. 
Provided,  such  company  shall,  as  such,  perform  military  duty 
at  least  four  times  every  year. 

92.  Any  person,  between  the  ages  of  eighteen  and  thirty- Privates,  by 
five,  who  shall  join  any  regularly  constituted  company  of  vol- '™  •^hri^idf" 
unteers,  whether  of  infantry,  cavalry,  grenadiers,  artillery,  or  company,  t-x- 
riflcmen,  and  shall  serve  as  a  volnntcer  in  such  company,  for  a  ™Py '""'."_["'" 
period  of  ten  years,  shall  thereafter  be  exempt  from  military  iS4S,c.5,s  s- 4. 
duty,  except  in  cases  of  insurrection  or  invasion. 

93.  Every  commissioned  officer  (major  and   brigadier-gen-  Cnmmi=sionpd 
eral  excepted)  who  shall  equip  himself  as  the  law  directs,  and  JJ^'(,'iJ^^,t'"v'^.'.",.s> 
shall  perform  military  duty  as  a  commissioned  officer,  for  the  service.— iS4S, 
period  of  eight  years,  shall  thereafter  be  exempt  from  military  '^^  ^"''^"  ^" 
duty,  except  in  cases  of  insurrection  or  invasion. 

94.  In  the  absence  or  death  of  the  brigadier-general  of  any  Arms,iiowiiro- 
brigade,  the  certificate  of  the  highest  officer  in  command  of  ™J,'^_g^'_'™._, 
the  militia  of  any  county  where  there  may  be  formed  a  volun-  dead  or  absent. 
tecr  company,  shall  be  lawful  for  the  purpose  of  enabling  the  ~^^"*' "^^ -^• 

36* 


426  MILLS  AND   MILLERS.  [ChaP.    71. 

governor  to  supply  such  company  with  arms  and  accoutre- 
ments, under  the  same  rules  and  regulations  as  are  now  in 
force. 

95.  Nothing  herein  contained  shall  be  construed  to  repeal 
mi  re-      ^"7  private  act  of  the  General  Assembly,  incorporating,  grant- 
''"'■3 'si?"  ^'   "^°  privileges  to,  or  regulating  particular  corps,  whether  of  the 
'  *■     ■       volunteers  or  of  the  ordinary  militia. 


Private  acts  in 
relation  to  mi- 
litia, not  re- 


Sect.  17.   11  Ire.  605. 


CHAPTER    71. 


MLLS  AND  MILLERS. 


Section 

1.  What  shall  be  public  mills. 

2.  Owner  on  one  side  of  a  stream,  how 

to  get  license  to  build  a  mill.  Not 
to  create  nuisance.  Proceedings 
"when  stream  lies  between  two  coun- 
ties. 

3.  Report  to  be  recorded,  and  assessed 

value  paid  into  office. 

4.  Mill,  within  what  time  to  be  begun 

and  finished. 

5.  Time  for  inAxnts,  &c.,  to  rebuild  mills. 

6.  Millers   to  grind    according   to  tui-n. 

What  toll  may  take. 

7.  Measures  to  be  kept  in  mills.    False 

measures  indictable. 

8.  Persons  injured  by  mills,  how  to  pro- 

ceed for  damages. 

9.  Tenant  may  make  known  owner,  and 

petition  to  be  served  on  him. 
10.  Not  disclosing  owner,  deemed  owner. 
Owner  may  appear  and  defend. 


Sectiox 

11.  When  tenant  and  owner  become  de- 

fendants, what  judgment  rendered. 
If  against  both,  they  shall  have  con- 
tribution. 

12.  Upon  the  hearing,  what  proceedings 

for  assessing  damages.  Verdict  of 
jur}',  how  made  and  returned.  To 
bind  for  five  years,  unless,  &c.  No- 
tice on  tenant  in  possession,  suffi- 
cient.   Jurors  may  be  challenged. 

13.  Provision  when  damages  assessed  as 

liigh  as  twenty  dollars. 

14.  Costs,   where  no  damage,   or  under 

five  dollars,  how  paid.  Execution 
to  issue  yearl}-  for  damages. 

15.  Pay  of  jurors. 

16.  Upon    appeals,    trial  to    bo    at  bar. 

Plaintift"  appealing  to  pay  costs,  if 
he  recovers  no  more. 


What  shall  be       1.    EvERT  water   grist   mill,  steam   mill,  or  windmill,  that 

S?s!  cl^'il's'.I  s'l'^li  g''i»J  for  toll>  shall  be  deemed  to  be  a  public  mill. 

Owner  on'  one      2.    Any  person  willing  to  build  a  water-mill,  who  hath  land 

how  wlefii-™'  only  on  one  side  of  a  stream,  shall  exhibit  his  petition  in  the 

cense  to  build  a  county  court,  and  therein  set  forth  who  is  the  projirietor  on 

74',  s.T,  4'.     "^  the  opposite  side  of  said  stream  ;  whereupon  a  summons  shall 

issue,  with  a  copy  of  the  petition,  to  the  proprietor,  to  appear 

at  the  next  court  and  show  cause,  by  answer  thereto,  why  the 

prayer  of  the  petition  should  not  be  granted;  and  if,  upon  the 

hearing  of  the  matter,  the   court  shall  allow  such  mill  to  be 

built,   they  shall   order  four  freeholders   to   view,  lay  olT  and 

value,  on  oath,  to  be  admin i.stcred  by  any  justice  of  the  peace, 

an  acre  of  the  land  of  such  proprietor,  and  also  an  acre  of  the 


Chap.  71.]  mills  and  millers.  427 

land   of  the  petitioner  opposite  thereto,  and  to  report  their 
assessment  and  proceedings  to  the  next  court ;  and  if  it  take 
not  away  liouses,  orchards,  gardens,  or  other  immediate  con- 
veniences, the  court  may,  in  their  discretion,  allow  either  the 
petitioner  or  the  proprietor  to  erect  such  mill  at  the  place  pro- 
posed, and  shall  order  the  costs  to   be   paid  by  the  person  to 
whom  leave  shall  be  granted.     Provided,  hoivever,  that  leave  Not  to  create 
to  erect  a  mill  shall  in  no  case  be  granted,  so  as  to  overflow  p"oc"e(ll'i 
another  mill  or  create  a  nuisance  to  the  neighborhood.     And  when^stleSa 
provided  further,  that  when  the  stream  shall  be  the  boundary  I'.vo  coi^u", 
line  between  two  counties,   the   petition  shall  be  filed  in  the       "^""^  *'' 
superior  court  of  the  county  in  which  the  petitioner  resides. 

3.  When  such  leave  shall  be  granted,  the  court  shall  order  Export  to  be 
the  report  to  be  recorded  ;  and  the  person  obtaining  leave  shall  SsesfedVaufe 
pay  into  the  oflice  of  the  court,  for  the  use  of  the  owner,  the  paifi  into  office. 
assessed  value  of  the  land,  and  thereupon  he  shall  be  vested  Zf.'  ^' '''  ^*' 
with  a  fee-simple  title  in  such  land. 

4.  The  person  to  whom  leave  shall  be  granted  shall,  within  ^™,  ^vithin 
one  year  begin  to  build  such  water-mill,  and  shall  finish  the  Cu,!'and"fi^n^ 
same  within  three   years;  and  thereafter  keep  it  up  for  the  i-i"'-''-  — R- S. 
use  and  ease   of  such  as   shall  be  customers  to  it ;  otherwise  "'  ''*'  ^'  ^' 
the  said  land  shall  return   to  the  person  from  whom  it  was 

taken,  or  to  such  other  person  as  shall  have  his  right,  unless 
the  time  for  finishing  the  mill,  for  reasons  approved  by  the 
court,  be  enlarged. 

5.  If  any  water-mill,  belonging  to  any  person  not  being  of  Time  for  in- 
age,fcme  covert,  non  compos  wew^w,  or  imprisoned,  be  let  fall,  rSifmiu"— 
burnt,  or  otherwise  destroyed,  such  person  and  his  heirs  shall  R- S- c.  74,  s.  6. 
have  three  years  to  rebuild  and  repair  the  same,  after  the  dis- 
ability removed. 

6.  All  millers  of  public  mills  shall  grind  according  to  turn.  Millers  to  grind 
and  shall  well  and  sufficiently  grind  the  grain  brought  to  their  ?u™.'''"°^'° 
mills,  if  the  water  will  permit,  and  shall  take  no  more  toll  for  What  toll  may 
grinding,  than  one  eighth  part  of  the  Indian  corn  and  wheat,  ^i^j;'^'''-^-''- 
and  one  fourteenth  part  for  chopping  grain  of  any  kind  ;  and 

every  miller  and  keeper  of  a  mill  making  default  therein  shall, 
for  each  offence,  forfeit  and  pay  five  dollars  to  the  party  in- 
jured. Provided,  nevertheless,  that  the  owner  may  grind  his 
own  grain  at  any  time. 

7.  All  millers  shall  keep  in  their  mills  the  following  meas-  Measures  to  be 
ures,  namely,  a  half  bushel  and  peck  of  full  measure,  and  also  Kaise'mSres 
proper  toll  dishes  for  each  measure;  and  every  owner,  by  him-  iiuUctabie.— K. 
self,  servant,  or  slave,  keeping  any  mill,  who  shall  keep  any '^" '^' '■'' °"  ^" 
false  toll  dishes,  contrary   to  the  true   intent  and  meaning  of 

this  chapter,  shall  be  deemed  to  be  guilty  of  a  misdemeanor. 

8.  Any  person  conceiving  himself  injured  by  the  erection  Persons i.ynred 
of  any  grist  mill,  or  mill  for  other  useful  purposes,  may  annlv  I'ymi"* '""vto 
by  petition  to  the  court  of  pleas  and  quarter-sessions  of  the  :iainau.;s.-R. 
county  in  which  the  land  endamaged  is  situate,  setting  forth  ^-  "■  ■'^'  ^-  "• 
in  what  respect  he  is  injured  by  the  erection  of  the  mill ;  a 

copy  of  which  petition  shall  be  served  on  the  owner  or  tenant 
in  possession  of  the  mill,  ten  days  previous  to  the  court. 


428  MILLS   AND   MILLEKS.  [CnAP.    71. 

Tenant  mny         9_    "When  a  copy  of  the  petition  shall  have  been  served  upon 

make  known      ,,        ,  ,    .  '  "^       .  '      ,    ,  ,     ,,  ,  rr  i       ■.  ,!■ 

o-vvner,  and  pe-  the  tenant  in  possession,  and  he  shall  make  anidavit,  setting 
tition  to  be  forth  the  name  of  the  owner  to  whom  he  is  tenant,  a  copy  shall 
— R.  S.  c.  74,  issue  and  be  served  on  such  owner,  if  he  reside  in  the  State  ; 
°- 1°-  but  if  he  shall  be  a  non-resident,  or  cannot  be  found,  publica- 

tion for  six  weeks  shall  be  made  in  some  newspaper  printed  in 
the  State,  for  him  to  appear  and  become  defendant. 
Not  disclosing  10.  If  the  tenant  shall  fail  to  file  such  affidavit,  he  shall  be 
owner!  '"'^'^  deemed  the  owner  of  the  mill,  unless  the  owner  shall  appear 
Owner  may  and  apply  to  become  a  party,  when  he  shall  be  allowed  to  do 
ieud.— R.°S.  c^.  so  upon  entering  into  a  bail-bond,  in  such  sum  as  the  court 
74,  s.  11, 12.      may  direct,  payable  to  the  petitioner ;  and  the  suit  shall  stand 

against  the  tenant  and  the  owner. 
men  tenant         H.    Whenever  the  tenant,  or  the  tenant  and  owner,  shall  be 
come  defend-    Hiade  defendant  in  manner  aforesaid,  the  court  shall  proceed 
ants,  what       in  the  cause  and  determine  the  same  as  to  right  and  justice 
■(imei™  ™°"   shall  appertain  ;  and  if  judgment  be  given  for  the  petitioner,  he 
If  "pijis-t both,  shall  recover  his  costs,  and  have  execution  to  sell  the  mill  and 
contribution!— appurtenances,  and  the  property  of  the  defendant,  or  a  sufii- 
R.  S.  c.  74,  s.    ciency  to  satisfy  his  judgment  and  costs.'    Provided,  that  after 
the  satisfaction  of  the  judgment,  either  of  the  defendants  may 
have  such  contribution  in  equity,  as  may  be  just  and  proper 
against  the   other  and   his  representatives,   according  to   the 
respective  interest  of  each  one,  and  the  proportion  of  the  recov- 
ery which  each  one  ought  to  bear. 
in''°whS''ro'^"      ■'^^'    ^^  "^P*^"  ^^^  hearing  of  any  petition,  the  court  shall  ad- 
cee'dings  for  as- judge  the  petitioner  entitled  to  relief,  they  shall  order  a  writ  to 
sessmgdama-   |jg  issued  to  the  sheritF  of  the  county,  commanding  him  to 
summon  a  jury  of  twenty-four  freeholders,  unconnected  with 
the  parties  by  consanguinity  or  affinity,  and  entirely  disinter- 
ested, no  one  of  whom  shall  be  the  owner  or  part  owner  of  any 
grist  mill,  or  mills  for  other  useful  purposes,  to  meet  on  the 
premises,  on   a  certain  day,  of  which  he  shall  give  each  party 
five  days'  notice  in  writing;  and  the  jury,  who  shall  be  formed 
by  drawing  twelve  out  of  the  twenty-four,  shall  take  an  oath, 
(which  the  sheriff  or  deputy  may  administer,)  that  they  will 
well  and   truly  inquire  whether   any  damage   hath  been  sus- 
tained by  the  petitioner,  by  reason  of  the  matters  complained 
of;  and  if  any  hath  been  sustained,  that  they  will  impartially, 
according  to  the  best  of  their  judgment  and  ability,  assess  the 
amount,  which  the  petitioner  ought  annually  to  receive  from 
Verdict  of  Jury,  the  owner  or  tenant  of  the  mill  on  account  thereof     Thereupon 
returned.^'"'    they  shall  view  and  examine  the  premises,  and  hear  the  evi- 
dence on  both  sides;  they  shall  then  retire  to  themselves  and 
make  up  their  verdict  as  to  the   sum  which  the  petitioner  is 
entitled  to  receive,  as  an  annual  compensation  for  his  damage 
by  reason  of  the  erection  of  the  mill  complained  of,  reduce  the 
same  to  writing,  sign,  and  deliver  it  sealed  up  to  the  sherilf,  to 
To  bind  fiirfive  be  delivered  to  (lie  court  at  the  next  ensuing  term  :  which  ver- 
Sso.   '  '    diet  shall  be  binding  between  the  parties  for  the  term  of  five 

years  from  the  filing  of  the  petition,  if  the  mill  is  kept  up  dur- 


Chap.  71.]  mills  a^td  millers.  429 

ing  that  time,  unless  the  damages  should  be  increased  by 
raising  tiie  water  or  otherwise.  Provided,  that  service  of  no- Notice  on  ten- 
tice,  on  the  tenant  in  possession,  of  the  meeting  of  the  j ury  ^j"^,'"  ^'j^^f^'^j 
shall  be  sufficient  notice  to  the  owner;  and  that  either  party  Jumrs  may  be 
shall  be  allowed  to  challenge  jurors  peremptorily  or  for  cause,  ij'"s'.™f74T 
as  in  the  trial  of  other  civil  cases.  12, 1.3. 

13.  In  all  cases  where  the  jury  shall  assess  the  yearly  dam-  Piovision 
age  as  high  as  twenty  dollars,  nothing  in  this  chapter  contained  rssessed^as""^ 
shall  be  construed  to  prevent  the  petitioner,  his  heirs  or  assigns,  li's''  ^^  twenty 
from  suing  as  heretofore ;  and  in  such  cases,  the  verdict  of  the  c.°74,'sl"T4.' 
jury  and  judgment  thereon,  shall  be  binding  only  for  the  year's 

damage  preceding  the  filing  of  the  petition. 

14.  If  the  verdict  shall  be  that  the  petitioner  hath  sustained  Costs,  -n-hen  no 
no  damage,  he  shall  pay  the  costs  of  his  petition ;  but  if  in  der"fivedoito°^ 
favor  of  the  petitioner,  he  may  have  execution  against  the  de- 1'°^^  P^i^i- 
fendant  for  the  amount  of  one  year's  damage   preceding  the 

filing  of  the  petition  and  for  all  costs.     Provided,  that  if  the 
damage  assessed  do  not  amount  to  five  dollars,  the  petitioner 
shall  recover  no  more  costs  than  damages.     And  if  the  defend-  Execution  to 
ant  do  not   annually  pay  the  petitioner,  his  heirs   or  assigns,  damages.— R. 
before  it  falls  due,  the  sum  assessed  as  the  damages  for  that  S- <^- '^*' ^- 1*- 
year,  the  petitioner,  his  heirs  or  assigns,  may  annually  during 
the  five  years,  at  the  same  term  that  the  petition  was  filed,  sue 
out  an  execution  against  him,  for  the  amount  of  the  last  year's 
damage,  or  any  part  thereof,  which  may  remain  unpaid. 

15.  Each  juror  shall  be  entitled  to  eighty  cents  per  day,  for  Payofjurore. 
attending  on  the  premises,  and  four  cents  for  every  mile  he  Z16.  '  '^' 
shall  travel  to  and  from  the  place  of  trial,  an  account  of  which 

he  shall  render  on  oath  to  the  sheriff  to  be  returned  to  court. 

16.  Wliere  either  party  shall  appeal  to  the  superior  court,  ^'P'^"  appeals, 
the  trial  in  that  court  shall  be  had  at  bar:  And  if  the  plaintiff!™.'"''""" 
shall  appeal,  and  fail  to  recover  higher  damages  than  were '"J'''!'♦jJ^^P- 
awarded  by  the  jury  on  the  premises,  he  shall  pay  the  costs  of  coTts"ff  he*!^ 

the  aupeal.  covers  nomore. 
^^  —II.  S.  c  74, 
s.  17. 


Sect.  2.   Ifmsa  not  to  be  valued,  1.3  Ire.  109. 

Sect.  8.  Tli!s  the  only  remedy,  11  Ire.  106.  2  Car.  L.  R.  245.  Who  may  sue,  1 1re.  20, 
5  lb.  333;  one  in  posseisiun,  10  Ire.  103.  Who  may  be  sued,  7  Ire.  24.  JJeath  of  defend- 
ant, 2  JIur.  254,  4  Hawks,  73. 

Sect.  13.  Plaintiff  a  criditoruitlnnstni.  frauds,  1  D.  &  B.  221.  Rule  of  damages,  1  Ire. 
232,  1  D.  &  B.  339,  lb.  492,  2  lb.  50.  Efful  of  jmUjment,  12  Ii'e.  341.  "  Uow  to  proce&d 
after  fife  years,  11  ke.  104. 


430. 


MONEY   REMAINING,   ETC. 


[Chap.  73. 


CHAPTER    72, 


MINES. 


Lessors  of  gold  mines  not  partners  with  tlaeir  lessees,  unless  they  so  contract. 

Lessors  of  gold      No  lessor  of   property,  real    or  personal,  for   gold  mining 
mines  not  part- p^j.pQggg   although  the  lessor  may  receive  a  sum  uncertain  of 

ners  with  thoir    t;r  '  o  J  ■  j        ^-  i-u 

lessees,  unless  the  proceeds  Or  net  profits,  or  any  other  consideration,  which, 

tract— R°s"     though  Uncertain  at  first,  may  afterwards  become  certain,  shall 

75,  S.6.  "   "     be  held  as  a  partner  of  the  lessee ;  nor  shall  any  of  the  legal 

or  equitable  relations  or  liabilities  of   copartners  exist  between 

them,  unless  it  be  so  stipulated  in  the  contract  between  the 

lessor  and  lessee. 


CHAPTER    73. 

MONEY  REMAINING  IN  THE    HANDS  OF  CLERKS  AND 
OTHERS. 


1.  Clerks,  &o.,  of   all  courts  to  make 

statement  of  monej-s  remaining  in 
hand  three  years.  Unless  detained 
by  order  of  court.  And  publish  the 
same  at  court  house  door.  To  whom 
statement  sent. 

2.  Moneys  to  be  paid  to  certain  public 

officers. 

3.  Clerks  failing  to  render  account,  &c.. 


Section 

to  be  sued.    Penalty  5100.    'Where 

suit  brought. 
4.  Clerks,  &c.,  admitting  money  in  hand, 

and  failing  to  pay,  how  proceeded 

against. 
6.  Sheriff  to  account  for  such  moneys, 

iu  like  manner  as  clerks. 
C.  Jloneys  may  be  used  by  the  public, 

till  called  for  by  owners. 


Clerks,  &c., of      1.   EvERY  clerk  of  the  county  court,  superior  court  of  law, 

^^'  k^Yt^ate^      clerk  and  master  in  equity,  and  clerk  of  the  supreme   court,  at 

mentofmoncys  the  first  session  of  the  court  of  which  he  is  clerk,  which   shall 

hand  "hroe^"     be  after  the  first  day  of  August  iu  every  year,  siiall   produce 

years ;  unless   to  said  court  a  statement,  on  oath,  of  all  moneys  remaining  in 

dor"of  TOurt."'"  his  hands,  which  may  have  been  paid  into  his  office  three  years 

or  more  previous  thereto,  and  shall  have  come  into   his  hands 

either  directly  from  parties,  or  from   his  predecessor  in  office, 

and  is  not  detained  in  his  custody  by  special  order  of  the  court ; 

specifying  therein  the  amount  of  each  claim,  and  the  name  of 

And  publish     the   person  to  whom   the   same  is  payable ;  a  copy  of  which 

the  same  at  CO.  gj-j^^gfjjgj^j  he  shall   forthwitii   post  up  in  his  office,  and  at  the 

court    house    door ;  and    if  there   be   no  such   moneys  in  his 

To  whom  state-  iiands,  he  shall  make  affidavit  of  the   same;  which   statement 

mont  sent.— K.  ^^  affulavit,  if  made  by  a  clerk  of  the  supreme  court,  the  court 

'   '     '  "   '     shall  cause  to  be  transmitted  to  the  public  treasurer  and  comp- 


Chap.  73.]  money  remaining,  etc.  *  431 

troller ;  if  made  by  a  clerk  of  the  county  or  superior  court,  or 
a  clerk  and  master  in  equity,  the  judge  or  chairman  of  the 
court,  before  whom  it  is  made,  shall  cause  the  same  to  be 
transmitted  to  the  officer  appointed  to  receive  and  disburse 
the  county  funds,  on  or  before  the  first  day  of  January  in  the 
next  year. 

2.  The  said  officers  shall,  on  or  before  the  first  day  of  Jan-  Jinnevs  to  be 
uary  in  every  year  after  the   foregoing  statements  are  niade, '^JJ'iJijJ.*'^^''^'™ 
account  with  and  pay  to  the  persons   entitled  to  receive  the  — li.  S.  c  7c,  s. 
same,  all  such  balances  reported  as  aforesaid  to  be   in  their  ^' 

hands ;  that  is,  the  clerk  of  the  supreme  court  shall  pay  to  the 
public  treasurer,  and  the  other  clerks  shall  pay  to  the  receivers 
of  the  county  funds  of  their  respective  counties. 

3.  If  any  clerk,  or  clerk  and  master,   shall   fail  to   comply  Clerks  failing 
with  the  duties  herein  enjoined,  he  shall  be  liable  to  be  sued  ^cm,Tt"'lc " to 
for  the  moneys  in  his   hands;  and,  moreover,  shall  forfeit  and  be  sued.  ^' 
pay  for  every  offence   one  hundred  dollars,  to  be  recovered  in    ''"""y  *^''''- 
the  name  of  the  State  and  for  the  use  of  the  county,  by  the 
receiver  of  the  county  funds ;  except  that  in  the   case  of  the  ,„     ^ 
default  of  the  clerk  of  the  supreme  court,  suit  shall  be  brought  brought.— R. 
by  the  public  treasurer  in  the  superior  court  of  Wake  county,  ^-  '^-  "^'  ^-  ^■ 
and  the  recovery  shall  go  to  the  public  treasury. 

4.  If  any  of  the   said  officers   shall  fail  to  pay  any  such  Clerks,  &e., 
money,  by  him  admitted  to  be  due,  on  or  before   the  first  day  e''7i'/h""(r"'"" 
of  January  in  every  year  as  aforesaid,  such  officer  shall  be  pro-  and  failing 'to 
ceeded  asfainst  by  the  public  treasurer,  in  any  court  of  record  P^^j  ^°'"  P."""" 

.^^  J  ,  ,-r  *        t  <.  ceeded  affamst. 

in  the  fetate  ;  or  by  the   proper  county  othcer,  jn  the   courts  ot  — R.  s.  cT  76,  s. 
his  own  county,  in  the  like  manner  as  against  defaulting  reve-  *• 
nue  officers. 

5.  Every  sheriff,  at  the  same  time  and  in  like  manner  as  is  Sherifrto  ac- 
required   of  clerks  of  county  courts,  shall  render  and  publish  mouevl'"^in"i'ke 
an  account  of  moneys  which  may  have  been  in  his  hands  for  manuer'as 
the  period  of  three  years,  and   account  for  and  pay  the   same  c.Te^sTe 

to  the  receiver  of  county  funds,  under  the  same  penalties  for 
default,  and  recoverable  in  like  manner,  as  are  provided  in  re- 
spect of  said  clerks. 

6.  The  money  aforesaid,  while  held  by  the  clerks  and  sheriffs,  Monersmaybe 
shall  be  paid  on  application,  to  the  persons  entitled  thereto  ;  pufj}i'?ViltU 
and  after  it  shall  cease  to  be  so  held,  it  may  be  used  as  other  called  for  by 
revenue,  subject,  however,  to  the  claim  of  the  rightful  owner,  c.^re^'^s  T't  ^ 


432 


NAMES.  —  NOTARIES.  —  OATHS.  [ChAP.   76. 


CHAPTER    74. 

NAMES. 

Naraes  changed  by  superior  courts. 

Names  changed      Ant  person  desirous  of  chnngiiig  his  name,  may  have  it 

bysup'rraurtR.  ^Qj-jg  ]jy  petition  in  any  superior  court :  and  the  court,  at  the 

terra  of  filing  the  petition,  or  afterwards,  may  decree  the  same. 


CHAPTER    75. 


NOTARIES. 


Notaries  ap- 
pointed by  gov. 
Qualified  in 
CO.  court. — R. 
S.  0.  78,  s.  1. 


Duplicate  com- 
mission issued 
— one  part  filed 
in  oflScc  of  CO. 
court. 

Clerics  and  c. 
and  m.  may 
act  as  notaries, 
and  certify 
under  seal  of 
office. — U.  S.  c. 
78,  s.  2. 


Section  Section 

1.  Notaries  appointed  by  governor.  Qual-  3.  Clerks  and  c.  and  master  may  act  as 

ified  in  county  court.  notaries,  and  certify   uudcr  seal  of 

2.  Duplicate   commission  issued.      One  office. 

part  filed  in  office  of  county  court. 

1.  The  governor  may,  from  time  to  time,  at  his  discre- 
tion, appoint  one  or  more  fit  persons  in  every  county,  to  act 
as  notaries;  who,  on  exhibiting  their  commission"  to  the 
county  court  of  the  county  in  which  they  are  to  act,  shall  be 
duly  qualified,  by  taking  before  said  court  an  oath  of  oifice, 
and  the  oaths  prescribed  for  officers. 

2.  The  governor  shall  issue  to  each  a  duplicate  commis- 
sion, one  part  whereof  shall  be  deposited  with  the  clerk  of  the 
court,  and  filed  among  the  records,  and  he  shall  note  on  his 
minutes  the  qualification  of  the  notary. 

3.  The  clerks  of  the  county  and  superior  courts,  and  clerks 
and  masters  in  equity,  may  act  as  notaries-public,  in  their  sev- 
eral counties,  by  virtue  of  their  office  as  clerks,  and  may  certi- 
fy their  notarial  acts  under  the  seals  of  their  respective  courts, 
whenever  it  may  be  desired. 


CHAPTER   76. 

OATHS. 


Sectios 

1.  Oatlis,  how  administered. 

2.  Persons  scrupulous  of  laying  bands  on 

the  Scriptures,  sworn  witli  uplifted 
hand. 


Section 
8.  Quakers,    Moravians,    Dunkors,   and 

Mennonists  to  be  affirmed. 
4.  Oaths  or  affirmations  to  support  the 

coustitutions  of  the   United    States 


Chap.  76.] 


OATHS. 


433 


Section 

and  of  this  State,  taken  by  all  offi- 
cers. 
6.  Oath  to  support  the  constitution  of  the 

United  States. 
6.  Oaths  of  sundry  persons: — 
(1.)  -Administrator. 
(2.)  Attorney  at  law. 
(3.)  Attorney-general    and    solicitors 

for  State  and  county. 
(4.)  Book  debt, 
(o.)  Book  debt  oath  for  an  executor 

or  administrator. 
(6.)  Clerk  and  master  in  equity. 
(7.)  Clerk  of  supreme  court. 
(8.)  Clerk  of  superior  court. 
(9.)  Clerk  of  county  court. 
(10.)  Commissioners  allotting  a  year's 

provision. 
(11.)  Dividing  and  allotting  real   es- 
tate. 
(12.)  Commissioner  of  wrecks. 
(13.)  Comptroller. 
(14.)  Constable. 
(15.)   Coroner. 
(16.)  Entry-taker. 
(17.)  Executor. 
(18.)  Finance  committee. 
(19.)  Governor. 
(20.)  Inspector  of  flour. 
(21.)  Inspector  of  tobacco. 
(22.)  Inspector  of  other  articles  than 

tobacco  or  flour. 
(23.)  Judge  of  supreme  court. 


Section 

(24.)  Judge  of  superior  court. 

(25.)  Foreman  of  grand-jury. 

(20.)  Gr.aud-jurors. 

(27.)  Officer  attending  grand-jury. 

(28.)  Officer  ch,arged  with  a  jury. 

(29.)  Petit-jury  in  a  capital  case. 

(30.)  In  criminal  cases  not  capital. 

(31.)  Jury  in  civil  cases. 

(32.)  Jury  haying  off  dower. 

(33. )  Jury  to  assess  damages  for  over^ 
flowing  lands. 

(34.)  Jury  to  lay  off  and  assess  dam- 
ages for  road. 

(35.)  Justices  of  the  peace. 
(36.)  Processioner. 
(37.)  Public  treasurer. 

(38.)  Ranger. 
(39.)  Register. 
(40.)  Secretary  of  State. 
(41.)  Sheriff. 
(42.)  Standard-keeper. 
(43.)  Strays,  valuers  of. 
(44.)  Surveyor  for  the  county. 
(45.)  Tobiicco  picker. 
(46.)  County  trustee. 
(47.)  Witness,  to  go  before  grand-jary. 
(48.)  Witness,  in  a  capital  case. 
(49.)  Witness,  on  a  traverse. 
(60.)  Witness,  in  civil  cases. 
(51.)  Witness,  to  prove  a  will. 
7.  Deputies  to  administer  oaths  wherever 
their  principals  may. 


Whereas,  lawful  oaths  for  the  discovery  of  trath  and 
establishing  right,  are  necessary  and  highly  conducive  to  the 
important  end  of  good  government ;  and  being  most  solemn 
appeals  to  Almighty  God,  as  the  omniscient  witness  of  truth, 
and  the  just  and  omnipotent  avenger  of  falsehood,  such  oaths, 
therefore,  ought  to  be  tal^en  and  administered  with  the  utmost 
solemnity.     Wherefore  it  is  enacted, 

1.  That  judges  and  justices  of  the  peace,  and  other  persons  Oaths,  how  ad- 
■who   may  be  empowered  to  administer   oaths,   shall    (except  S''"'''*^''^'^-— 
in   the    cases    in   this    chapter    excepted,)    require    the    party  ''    ' '^'  ^'^^^^■ 
sworn,  to  lay  his  hand  upon  the  holy  evangelists  of  Almighty 

God,  in  token  of  his  engagement  to  speak  the  truth,  as  he 
hopes  to  be  saved  in  the  way  and  method  of  salvation  pointed 
out  in  that  blessed  volume  ;  and  in  further  token,  that,  if  he 
should  swerve  from  the  truth,  he  may  justly  be  deprived  of  aU 
the  blessings  of  the  gospel,  and  made  liable  to  that  vengeance 
which  he  has  imprecated  on  his  own  head ;  and,  after  repeat- 
ing the  words,  "  So  help  me,  God,"  shall  kiss  the  holy  gospels, 
as  a  seal  of  confirmation  to  the  said  engagements. 

2.  When  the  person  to  be  sworn,  shall  be  conscientiously  persons  .sent* 
scrupulous   of  taking  a  book   oath   in  manner  aforesaid,  lie  P"'''"^  of  lay- 

37 


434  OATHS.  [Chap.  76. 

ing  hands  on    shall  be  excused  from  laying  hands  upon,  or  toucliing  the  holy 
'!l^ '^"'•?th'u )' "O^P^l**  5  and  the   oath  required  shall  be  adtniiiistered  in  the 
imedVand'.— '  following  manner,  namely  :  he  shall  stand  with  his  right  hand 
-E.  S.c.  79,  s.  jjf^gj  ^^p  towards  heaven,  in  token  of  his  solemn  appeal  to  the 
supreme  God,  and  also  in  token,  that  if  he  should  swerve  from 
the  truth,  he  would  draw  down  the  vengeance  of  heaven  upon 
his    head,    and    shall  introduce  the  intended  oath  with  these 
words,  namely :  "  I,  A.  B.,  do  appeal  to  God,  as  a  witness  of  the 
truth  and  the  avenger  of  falsehood,  as  I  shall  answer  the  same 
at  the  great  day  of  judgment,  when  the  secrets  of  all  hearts 
shall  be  known,  that,  &c."  as  the  words  of  the  oath  may  be. 
Quakcrs.Mora-      3.    The  solemn  affirmation  of    Quakers,  Moravians,    Dun- 
k'ers!and  Men- kers,  and  Mennonists,  made  in  the  manner  heretofore  used  and 
nonists  to  be  af- accustomed,   shall  be  admitted  as  evidence   in  all  civil   and 
cTCs.'s!''  ^*  criminal  cases ;  and  in  all  cases  where  they  are  required  to 
take  an  oath  to  support  the  constitution  of  the  State,  or  of  the 
United   States,  or  an  oath   of  office,  they    shall  make   their 
solemn  affirmation,  in  the  words  of  the  oath  beginning  after 
the  word  "  swear ; "  which  affirmation  shall  be  as  good  and 
effectual  to  all  intents  and  purposes,  as  if  they  had  taken  the 
oaths  aforesaid. 
Oaths  or  affir-       4.  Every  member  of  the  General  Assembly,  and  every  per- 
Ztae'con^t^ilson  who  shall  be  chosen  or  appointed  to  hold  any  office  of 
tutionsofthe    trust  or  profit  in  the   State,  shall,  before  taking  his  seat  or 
andof  thif'    entering  upon  the  execution  of  the  office,  take  and  subscribe 
state,  taken  by  the  following  oath  or  affirmation:  "I,  A.  B.,  do  solemnly  and 
-r^sTm    sincerely   swear   (or  affirm)  that  I  will  be  faithful  and  bear 
s-4-    '   '     '    true  allegiance  to  the  State  of   North   Carolina,  and  to  the 
constitutional  powers   and  authorities,  which  are  or  may  be 
established  for  the   government  thereof;  and  that  I  will  en- 
deavor to  support,  maintain,  and  defend  the  constitution   of 
said  State,  not  inconsistent  with  the  constitution  of  the  United 
States,  to  the  best  of  my  knowledge  and  ability :  so  help  me, 
God."     Where    such    person    shall   be    of  the    people    called 
Quakers,  Moravians,   Mennonists,  or  Dunkers,   he    shall  take 
and  subscribe   the  follownng  affirmation  :  "  I,   A.  B.,  do  sol- 
emnly and  sincerely  declare  and  affirm,  that  I  will  truly  and 
faithfully  demean    myself  as    a   peaceable    citizen  of   North 
Carolina  ;  that  I  will  be  subject  to  the  powers  and  authorities 
that  are   or   may  be   established   for   the   good  government 
thereof,  not  inconsistent  with  the  constitution  of  the  State  and 
the  constitution  of  the  United  States,  either  by  yielding  an 
active  or  passive  obedience  thereto,  and  that  I  will  not  abet  or 
join  the  enemies  of  the  State,  by  any  means,  in  any  conspir- 
acy whatever,   against  the    State;    that   I  will  disclose    and 
make  known  to  the  legislative,  executive,  or  judicial  powers  of 
the  State,  all  treasonable  conspiracies  which  I  shall  know  to 
be  made  or  intended  against  the  State." 
Oathtosupport      5.    AH  members  of  the  General  Assembly,  and  all  officers 
lionoflhe'"'     who   shall   be   elected  or  appointed  to  any  office  of  trust  or 
u.  states.— R.  profit  withiu  the  State,  shall,  agreeable  to  act  of  Congress,  take 
S.  c.  70, 8.  6.      ' 


Chap.  76.]  oaths.  435 

the  following  oath  or  affirmation :  "  I,  A.  B.,  do  solemnly 
swear,  (or  affirm,  as  the  case  may  be,)  that  I  will  support  the 
constitution  of  the  United  States :  so  help  me,  God  :  "  which 
oath  shall  be  taken  before  they  enter  upon  the  execution  of 
the  office. 

6.    The  oaths  of  office  to  be  taken  by  the  several  officers  Oaths  of  sun- 
and  persons  hereafter  named,  shall  be  in  the  words  following  dry  persons. 
the  names  of  said  officers  and  persons  respectively. 

ADMINISTRATOR, 

(1.)  You  swear  (or  affirm)  that  you  believe  A.  B.  died  with-  Administrator. 
out  leaving  any  last  will  and  testament ;  that  you  will  well 
and  truly  administer  all  and  singular  the  goods  and  chattels, 
rights  and  credits  of  the  said  A.  B.,  and  a  true  and  perfect 
inventory  thereof  return  to  this  court  at  its  next  term ;  and 
that  all  other  duties  appertaining  to  the  charge  reposed  in 
you,  you  will  well  and  truly  perform,  according  to  law,  and 
with  your  best  skill  and  ability:  so  help  you,  God. 

ATTORNEY   AT   LAW. 

(2.)   I,  A.  B.,  do  swear  (or  affirm)  that  I  will  truly  and  hon-  Attorney  at 
estly  demean  myself  in  the  practice  of  an  attorney,  according  '''''^' 
to  the  best  of  my  knowledge  and  ability :  so  help  me,  God. 

ATTORNEY-GENERAL,    AND    STATE   AND    COUNTY    SOLICITORS. 

(3.)   I,  A.  B.,  do  solemnly  swear  (or  afTirm)  that  I  will  well  ^"""^sfi;^," 
and  ti-uly  serve  the   State  of  North  Carolina  in  the  office  of  toTs  br  State'" 
attorney-general;  (solicitor  for  the   State — or  solicitor  for  the  ^"<i <=°"°'y- 
State  in  the  county  of  ,)  I  will,  in  the  execution  of  my 

office,  endeavor  to  have  the  criminal  laws  fairly  and  impar- 
tially administered,  so  far  as  in  me  lies,  according  to  the  best 
of  my  knowledge  and  ability :  so  help  me,  God. 

BOOK   DEBT    OATH. 

(4.)  You  swear  (or  affirm)  that  the  matter  in  dispute  is  Book  debt. 
a  book  account,  and  that  you  have  no  means  to  prove  the  de- 
livery of  such  articles,  as  you  propose  to  prove  by  your  own 
oath,  or  any  of  them,  but  by  yourself;  and  you  further  swear 
that  the  account  rendered  by  you  is  just  and  true ;  and  that 
you  have  given  all  just  credits  :  so  help  you,  God. 

BOOK  DEBT  OATH  FOR  AN  EXECUTOR  OR  ADMINISTRATOR. 

(5.)   You,  as  executor  or  administrator  of  A.  B.,  swear  (or  Book  debt  oath 
affirm)  that  you  verily  believe  this  account  to  be  just  and  true,  f"«r  an  executor 

„      1  iu    4.  4-u  ■      -i  1  1  IT  ,1         '  or  administra- 

and  that  there  are  no  witnesses,  to  your  knowledge,  capable  of  tor. 
proving  the  delivery  of  the  articles  therein  charged ;  and  that 
you  found  the  book  or  account  so  stated,  and  do  not  know  of 
any  other  or  further  credit  to  be  given,  than  what  is  therein 
given:  so  help  you,  God. 

CLERK    AND    MASTER    IN    EQUITY. 

(6.)    The  same  as  the  oath  prescribed  for  a  clerk  of  the  supe-  C.  and  master 
rior  court  of  law,  mutatis  vwtandis.  '"  '^'^"''^■" 


436 


[Chap.  76. 


Clerk  of  su- 
preme court. 


CLERK  or  THE  SUPREME  COURT. 

(7.)  I,  A.  B.,  do  swear  (or  affirm)  that,  by  myself  or  any 
other  person,  I  neither  have  given,  nor  will  give,  to  any  person 
whatsoever,  any  gratuity,  gift,  fee,  or  reward,  in  consideration 
of  my  appointment  to  the  office  of  clerk  of  the  supreme  court 
of  North  Carolina;  nor  have  I  sold,  or  oflered  to  sell,  nor  will 
I  sell  or  ofter  to  sell,  my  interest  in  the  said  office ;  I  also  sol- 
emnly swear  that  I  do  not,  directly  or  indirectly,  hold  any 
other  lucrative  office  in  this  State  ;  I  do  further  swear,  that  I 
will  execute  the  office  of  clerk  of  the  supreme  court  without 
prejudice,  favor,  affection,  or  partiality,  to  the  best  of  my  skill 
and  ability:  so  help  me,  God. 


Clerk  of  supe- 
rior court. 


CLERK   OF   THE   SUPERIOR   COLTIT   OF   LAW. 

(8.)  I,  A.  B.,  do  swear  (or  affirm)  that,  by  myself  or  any 
other  person,  I  neither  have  given,  nor  will  I  give,  to  any  per- 
son whatsoever,  any  gratuity,  gift,  fee,  or  reward,  in  considera- 
tion of  my  election  or  appointment  to  the  office  of  clerk  of  the 
superior  court  of  law  for  the  county  of  ;  nor  have  I  sold 

or  offered  to  sell,  nor  will  I  sell  or  offer  to  sell,  my  interest  in 
the  said  office;  I  also  solemnly  swear  that  I  do  not,  directly  or 
indirectly,  hold  any  other  lucrative  office  in  the  State ;  and  I 
do  further  swear,  that  I  will  execute  the  office  of  clerk  of  the 
superior  court  of  law  for  the  county  of  ,  without  preju- 

dice, favor,  affection,  or  partiality,  to  the  best  of  my  skill  and 
ability :  so  help  me,  God. 


CLERK    OP   THE   COURT   OF   PLEAS   AND    QUARTER-SESSIONS. 

Clerk  of  count}'      (9.)  The  same,  mutatis  mutandis,  as  that  prescribed  for  clerk 
court.  q£  ^i^g  superior  court  of  law. 


Coramissionei 
allotting  a 
year's  provis- 


COMJIISSIONERS   ALLOTTING   A   YEAR'S   PROVISION. 

(10.)  You  and  each  of  you  swear  (or  affirm)  that  you  will 
lay  off  and  allot  to  the  petitioner,  a  year's  provision  for  herself 
and  family,  according  to  law,  and  with  your  best  skill  and 
ability:  so  help  you,  God. 


COMMISSIONERS   DIVIDING   AND   ALLOTTING   REAL   ESTATE. 

Commissioners  (H-)  You  and  each  of  you  swear  (or  affirm)  that,  in  the 
aiiotHnlreal  Partition  of  the  real  estate  now  about  to  be  made  by  you,  you 
estate.  will  do  equal  and  impartial  justice  among  the  several  claim- 

ants, according  to  their  several  rights,  and  agreeable  to  law : 
so  iielp  you,  God. 


COMMISSIONER   OF   WRECKS. 


Commissioner 
of  wrecks. 


(12.)  I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  truly 
and  faithfully  discharge  the  duties  of  a  commissioner  of 
wrecks,  for  the  district  of  ,  in  the  county  of  , 

according  to  law  :  so  help  me,  God. 


Chap.  76.]  oaths.  437 

COMPTROLLER. 

(13.)   I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  well  Comptroller. 
and  truly  execute  the  trust  reposed  in  me  as  comptroller,  with- 
out favor  or  partiality,  according  to  law,  to  the  best  of  my 
knowledge  and  ability :  so  help  me,  God. 

CONSTABLE. 

(14.)  I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  well  Const.ible. 
and  truly  serve  the  State  of  North  Carolina  in  the  office  of  a 
constable ;  I  will  see  and  cause  the  peace  of  the  State  to  be 
well  and  truly  preserved  and  kept,  according  to  my  power;  I 
will  arrest  all  such  persons  as,  in  my  sight,  shall  ride  or  go 
armed  ofl[l?nsively,  or  shall  commit  or  make  any  riot,  affi-ay,  or 
other  breach  of  the  peace ;  I  will  do  my  best  endeavor,  upon 
complaint  to  me  made,  to  apprehend  all  felons  and  rioters,  or 
persons  riotously  assembled,  and  if  any  such  oflfenders  shall 
make  resistance  with  force,  I  will  make  hue  and  cry,  and  will 
pursue  them  according  to  law,  and  will,  faithfully  and  with- 
out delay,  execute  and  return  all  lawful  precepts  to  me  direct- 
ed ;  I  will,  well  and  truly,  according  to  my  knowledge,  power, 
and  ability,  do  and  execute  all  other  things  belonging  to  the 
office  of  a  constable,  so  long  as  I  shall  continue  in  office:  so 
help  me,  God. 


(15.)    I,    A.   B.,  do  solemnly  swear   (or  affirm)  that,  in   all  Coroner, 
things,  I  will  diligently,  faithfully,  and  impartially  execute  the 
office  of  coroner,  for  the  county  of  ,  according  to  law, 

and  to  the  best  of  my  skill  and  ability :  so  help  me,  God. 

ENTRY-TAKER. 

(16.)    I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  well  Eutry-takcr. 
and  impartially  discharge  the  several  duties  of  the  office  of 
entry-taker  for  the  county  of  ,  according  to  law :  so 

help  me,  God. 

EXECUTOR. 

(17.)  You  swear  (or  affirm)  that  you  believe  this  WTiting  to  Executor. 
be  and  contain  the  last  will  and  testament  of  A.  B.,  deceased ; 
and  that  you  will  well  and  truly  execute  the  same,  by  first 
paying  his  debts  and  then  his  legacies,  as  far  as  the  said  estate 
shall  extend,  or  the  law  shall  charge  you ;  and  that  you  will 
well  and  faithfully  execute  the  office  of  an  executor,  agreeable 
to  the  trust  and  confidence  reposed  in  you,  and  according  to 
law :  so  help  you,  God. 

FINANCE    COMMITTEE. 

(18.)    I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  faith-  Finnnce  coin- 
fully  perform  the  duties  imposed  on  me  by  law,  as  a  member  ™'"'^®' 
37* 


438 


Inspector  of 
flour. 


Inspector  of 
tobacco. 


Inspector  of 
other  articles 
than  tobacco 
or  flour. 


OATHS.  [CiLVP.  76. 

of  the  committee  of  finance  for  the  county  of  ,  in  all 

business  that  shall  come  before  me,  without  doing  injustice  to 
the  county  or  individuals,  to  the  best  of  my  knowledge  and 
ability:  so  help  me,  God. 

GOVERNOR. 

(19.)  I,  A.  B.,  do  swear  (or  affirm)  that,  as  governor  of  the 
State  of  Nortli  Carolina,  I  will  execute  the  duties  of  that  im- 
portant office,  without  favor  or  aflection,  agreeable  to  the  con- 
stitution and  laws  of  the  State,  and  according  to  the  best  of 
my  skill  and  ability :  so  help  me,  God. 

INSPECTOR   OF   FLOUR. 

(20.)  I,  A.  B.,  do  swear  (or  affirm)  that  I  will,  without  favor 
or  aflection,  malice  or  partiality,  inspect  all  flom-  brought  to 
me,  and  which  I  shall  be  required  to  examine,  and  tliat  no 
flour  shall  be  passed  or  branded  by  me,  without  my  inspecting 
the  same ;  that  I  will  not  brand,  or  cause  to  be  branded,  as 
passed,  any  cask  of  ffour  that  shall  not  appear  to  me,  to  the 
best  of  my  skill  and  judgment,  to  be  sufficiently  clean,  well 
ground,  sweet,  and  merchantable;  that  I  will  mark  on  all 
casks  of  flour  the  degree  thereof,  according  to  the  directions  of 
law ;  that  I  will  carefully  examine  the  casks,  in  which  flour 
brought  for  inspection  shall  be  contained,  and  that  I  will  not 
pass  or  brand  any  such  casks,  unless  they  be  of  such  size, 
goodness,  and  thickness  as  by  law  required :  so  help  me,  God. 

INSPECTOR   OF   TOBACCO. 

(21.)  I,  A.  B.,  swear  (or  affirm)  that  I  will  carefully  and  dili- 
genlly  view  and  examine  all  tobacco,  brought  to  any  public 
warehouse,  whereof  I  am  appointed  to  be  inspector,  and  all 
other  tobacco,  which  I  may  be  called  upon  to  view  and  in- 
spect, and  that,  not  separate  and  apart  from  my  fellow,  but  in 
his  presence ;  and  that  I  will  not  receive  any  tobacco  that  is 
not,  in  my  judgment,  sound,  weU  conditioned,  merchantable, 
and  clear  of  trash ;  nor  receive,  pass,  or  stamp  any  tobacco, 
hogshead  or  cask  of  tobacco,  prohibited  by  law ;  and  that  I 
will  not  change,  alter,  or  give  out  any  tobacco,  other  than  such 
hogshead  or  cask,  for  which  the  receipt  to  be  taken  in  was 
given,  but  that  I  will,  in  all  things,  well  and  faithfully  dis- 
charge my  duty,  in  the  office  of  inspector,  according  to  law, 
without  fear,  favor,  or  aflection,  malice  or  partiality :  .so  help 
me,  God. 

INSPECTOR   OF   OTHER   ARTICLES   THAN   TOBACCO   AND    FLOUR. 

(22.)  I,  A.  B.,  do  swear  (or  affirm)  that  I  will  faithfully,  im- 
partially, and  diligently  execute  the  office  of  inspector ;  and 
that  I  will  not,  for  favor,  aflection,  prejudice,  or  jjartiality, 
brand  for  any  person  whatsoever,  any  barrel  of  beef,  pork,  rice, 
tar,  pitcli,  or  turpentine,  fish,  butter,  or  flaxseed;  or  pass  any 
timber,  lumber,  or  shingles,  other  than  such  as  are  declared  to 


Chap.  76.]  oaths.  439 

be  lawful,  according  to  the  best  of  my  skill  and  judgment: 
so  help  me,  God. 

JUDGE  OP  THE  SUPREME  COURT. 

(23.)  I,  A.  B.,  do  solemnly  swear  (or  affirm)  that,  in  my  Jiuise  of 
office  of  judge  of  the  supreme  court  of  North  Carolina,  I  will  ^^pri^^s  court. 
administer  justice  without  respect  to  persons,  and  do  equal 
right  to  the  poor  and  the  rich,  to  the  State  and  to  individuals ; 
and  that  I  will  honestly,  faithfully,  and  impartially  perform  all 
the  duties  of  the  said  office,  according  to  the  best  of  my  abili- 
ties, and  agreeable  to  the  constitution  and  laws  of  the  State  : 
so  help  me,  God. 

JUDGE  OF  THE  SUPERIOR  COURT  OF  LAW  AND  EQUITY. 

(24.)  I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  well  Ju.i^e  of 
and  truly  serve  the  State  of  North  Carolina,  in  the  office  of  ""P^"""^ '^™rt. 
judge  of  the  superior  courts  of  law  and  equity  of  the  said 
State :  I  will  do  equal  law  and  right  to_^.  all  persons,  rich  and 
poor,  without  having  regard  to  any  person.  I  will  not  wit- 
tingly or  willingly  take,  by  myself  or  by  any  other  person,  any 
fee,  gift,  gratuity,  or  reward  whatsoever,  for  any  matter  or 
thing  by  me  to  be  done  by  virtue  of  my  office,  except  the  fees 
and  salary  by  law  appointed ;  I  will  not  maintain,  by  myself 
or  by  any  other  person,  privately  or  openly,  any  plea  or  quar- 
rel depending  in  any  of  the  said  com-ts;  [  will  not  delay  any 
person  of  common  right,  by  reason  of  any  letter  or  command 
from  any  person  or  persons  in  authority  to  me  directed,  or  for 
any  other  cause  whatsoever;  and  in  case  any  letter  or  orders 
come  to  me  contrary  to  law,  I  will  proceed  to  enforce  the  law, 
such  letters  or  orders  notwithstanding;  I  will  not  appoint  any 
person  to  be  clerk  of  any  of  the  said  courts,  but  such  of  the 
candidates  as  appear  to  me  sufficiently  qualified  for  that  office  ; 
and  in  all  such  appointments  I  will  nominate  without  reward, 
hope  of  reward,  prejudice,  favor,  or  partiality,  or  any  other  sin- 
ister motive  whatsoever ;  and  finally,  in  all  things  belonging 
to  my  olfice,  during  my  continuance  therein,  I  will  faithfully, 
truly,  and  justly,  according  to  the  best  of  my  skill  and  judg- 
ment, do  equal  and  impartial  justice  to  the  public,  and  to  indi- 
viduals :  so  help  me,  God. 

GRAND-JURY  —  FOREMAN   OF. 

(25.)  You,  as  foreman  of  tliis  grand  inquest  for  the  body  of  Foreman  of 
this  county,  shall  diligently  inquire  and  true  presentment  make  8™"''"J"''y- 
of  all  such  matters  and  things  as  shall  be  given  you  in  charge ; 
the  State's  counsel,  your  fellows'  and  your  own,  you  shall 
keep  secret ;  you  shall  present  no  one  for  envy,  hatred,  or  mal- 
ice ;  neither  shall  you  leave  any  one  unpresented,  for  fear, 
favor,  or  affection,  reward,  or  the  hope  of  reward;  but  you 
shall  present  all  things  truly,  as  they  come  to  your  knowledge, 
according  to  the  best  of  your  understanding :  so  help  you, 
God. 


440  OATHS.  [Chap.  76. 


GRAND-JURORS. 

Grand-jurors.  (26.)  The  same  oath  which  your  foreman  hath  taken  on  his 
part,  you,  and  each  of  you,  shall  well  and  truly  observe  and 
keep  on  your  part :  so  help  you,  God. 

GRAND-JURY OFFICER   OF. 

Officer  attend-       (27.)    You  swear  (or  affirm)  that  you  will  faithfully  carry  all 
ing  grand-jury,  papers  gent  from  the  court  to  the  grand-jnry,  or  from  the  grand- 
jury  to  the  court,  without  alteration  or  erasement,  and  without 
disclosing  the  contents  thereof:  so  help  you,  God. 

JURY  —  OFFICER   OF. 

Officer  charged  (28.)  You  swear  (or  affirm)  that  you  will  keep  every  person, 
wit  a  jury,  g^orn  of  this  jury,  together  in  some  private  and  convenient 
place,  without  meat  or  drink  (water  excepted).  You  shall  not 
suffer  any  person  to  speak  to  them,  neither  shall  you  speak  to 
them  yourself,  unless  it  be  to  ask  them  whether  they  are 
agreed  in  their  verdict,  but  with  leave  of  the  court :  so  help 
you,  God. 

JURY,   IN   A   CAPITAL   CASE. 

Petit-jury  in  a      (29.)    You  swear  (or  affirm)  that  you  will  well  and  truly  try, 
capi     case-      ^^^  ^.^^^  deliverance  make,  between  the  State  and  the  prisoner 
at  the  bar,  whom  you  shall  have  in  charge,  and  a  true  verdict 
give  according  to  your  evidence  :  so  help  you,  God. 

JURY,  IN  CRIMINAL  CASES  NOT  CAPITAL. 

Petit-jury  in  (30.)   You  and  each  of  you  swear  (or  affirm)  that  you  will  well 

not  capital.  '  and  truly  try  all  issues  of  traverse  which  shall  come  before  you 
during  this  term,  and  true  verdicts  give  according  to  the  evi- 
dence thereon  :  so  help  you,  God. 

The  same  oath  to  talesmen,  by  using  the  word  "  day  "  in- 
stead of  "  term." 

JURY,   IN   CIVIL   CASES. 

Jury  in  civil  (31.)  The  Original  panel  thus :  —  You  and  each  of  you  swear 
(or  affirm)  that  you  will  well  and  truly  try  all  civil  cases,  which 
shall  come  before  you  during  this  term,  and  true  verdicts  give 
thereon,  according  to  the  evidence  :  so  help  you,  God. 

The  same  oath  to  talesmen,  by  using  the  word  "  day  "  in- 
stead of  "  term." 


cases. 


JURY,   LAYING    OFF   DOWER. 

.Tury  laying  oflf      (32.)    You  and  each  of  you  swear  (or  affirm)  that  you  will, 
dower.  without  partiality,  and  according  to  your  best  judgment,  lay 

off  and  allot  to  A.B.,  widow  of  C.  D.,  such  dower  in  the  lands 
of  said  C.  D.  as  by  law  she  is  entitled  to :  so  help  you,  God. 

JURY,   TO   ASSESS   DAMAGES   FOR   OVERFLOWING   LANDS. 

Jury  to  assess        (33.)    You  and  each  of  you  swear  (or  affirm)  that  you  will 

damages  for  ^        ' 


Chap.  76.]  oaths.  441 

well  and  truly  inquire  whether  any  damage  hath  been  sus-  oreiflowing 
tained  by  the  petitioner,  A.  B.,  by  reason  of  the  erection  of  the  '"°'^^' 
mill  complained  of  by  him  ;  and,  if  any  damage  hath  been 
sustained,  that  you  and  each  of  you  will  impartially,  accord- 
ing to  the  best  of  your  judgment  and  ability,  assess  the  amount 
winch  the  said  A.  B.  ought  annually  to  receive  from  the  owner, 
proprietor,  or  tenants  of  said  mill,  on  account  thereof:  so  help 
you,  God. 

JURY,   TO   LAY   OFF   ROADS   AND   ASSESS   DAMAGES. 

(34.)  I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  lay  jury  to  lay  off 
out  the  road,  directed  to  be  laid  out  by  the  court  of  pleas  and  ""cs^f^  road"" 
quarter-sessions,  to  the  greatest  ease  and  advantage  of  the  in- 
habitants, and  with  as  little  prejudice  to  the  owners  of  land, 
over  which  the  same  shall  be  laid  out,  as  may  be  ;  and  will 
truly  and  impartially  assess  the  damages,  which  may  be 
awarded  by  me,  for  injuries  done  to  lands  by  the  laying  out 
of  said  road,  without  favor,  affection,  malice,  or  hatred,  and 
to  the  best  of  my  skill  and  knowledge  :  so  help  me,  God. 

JUSTICE   OP   THE   PEACE. 

(35.)   I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  as  a  justice  justice  of  the 
of  the  peace,  and  as  a  justice  of  the  court  of  pleas  and  quarter-  poace. 
sessions  in  the  county  of  ,  in  all  articles  in  the  com- 

mission to  me  directed,  I  will  do  equal  right  to  the  poor  and 
the  rich,  to  the  best  of  my  judgment,  and  according  to  the 
laws  of  the  State  :  I  will  not,  privately  or  openly,  by  myself  or 
any  other  person,  be  of  counsel  in  any  quarrel  or  suit  depend- 
ing before  me,  and  I  will  hold  the  quarter-sessions  of  my 
county,  as  the  statutes  in  that  case  shall  direct ;  the  fines  and 
amercements  that  shall  happen  to  be  made,  and  the  forfeitures 
that  shall  be  incurred,  I  will  cause  to  be  duly  entered  without 
concealment :  I  will  not  wittingly  or  willingly  take,  by  myself 
or  by  any  other  person  for  me,  any  fee,  gift,  gratuity,  or  re- 
ward whatsoever  for  any  matter  or  thing,  by  me  to  be  done 
by  virtue  of  my  office,  except  such  fees,  as  are  or  may  be  di- 
rected and  limited  by  statute;  but  well  and  truly,  I  will  do  my 
office  of  justice  of  the  peace,  as  well  within  the  court  of  pleas 
and  quarter-sessions  as  without :  I  Avill  not  delay  any  person 
of  common  right,  by  reason  of  any  letter  or  order  from  any 
person  in  authority  to  me  directed,  or  for  any  other  cause 
whatever  ;  and  if  any  letter  or  order  come  to  me,  contrary  to 
law,  I  will  proceed  to  enforce  the  law,  such  letter  or  order  not- 
withstanding. I  will  not  direct  or  cause  to  be  directed,  to 
the  parties,  any  warrant  by  me  made,  but  will  direct  all  such 
warrants  to  the  sheriffs  or  constables  of  the  county,  or  the  other 
officers  or  ministers  of  the  State,  or  other  indifferent  persons, 
to  do  execution  thereof;  and  finally,  in  all  things  belonging  to 
my  office,  during  my  continuance  therein,  I  will  faitlifully, 
truly,  and  justly,  and  according  to  the  best  of  my  skill  and 
judgment,  do  equal  and  impartial  justice  to  the  public,  and  to 
individuals :  so  help  me,  God. 


442 


OATHS. 


[Chap.  76. 


Processioner. 


Public  treasn- 


PROCESSIONER. 

(36.)  I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  well 
and  truly  execute  the  duty  "and  trust,  enjoined  by  the  act  for 
processioning  lands  in  the  State,  according  to  the  best  of  my 
skill  and  ability,  without  favor  or  partiality,  to  any  person  or 
persons  whatsoever:  so  help  me,  God. 

PUBLIC   TREASURER. 

(37.)  I,  A.  B.,  do  swear  (or  affirm)  that,  according  to  the  best 
of  my  abilities  and  judgment,  I  will  execute  impartially  the 
office  of  public  treasurer,  in  all  things  according  to  law,  and 
account  for  the  public  taxes;  and  I  will  not,  directly  or  in- 
directly, apply  the  public  money  to  any  other  use,  than  by  law 
directed :  so  help  me,  God. 

RANGER. 

(38.)  I,  A.  B.,  do  swear  (or  affirm)  that  I  will  well  and  truly 
execute  the  office  of  ranger,  for  the  county  of  ,  accord- 

ing to  the  best  of  my  skill  and  ability:  so  help  me,  God. 

REGISTER. 

(39.)  I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  faith- 
fully and  truly,  according  to  the  best  of  my  skill  and  ability, 
execute  the  office  of  register  for  the  county  of  ,  in  all 

things  according  to  law :  so  help  me,  God. 

SECRETARY   OF   STATE. 

(40.)  I,  A.  B.,  do  swear  (or  affirm)  that  I  will,  in  all  respects, 
faithfully  and  honestly  execute  the  office  of  secretary  of  State, 
of  the  State  of  North  Carolina,  during  my  continuance  in 
office,  according  to  law:  so  help  me,  God. 

SHERIFF. 

Sheriff.  (41.)   i^  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  exe- 

cute the  office  of  sheriff  of  county,  to  the  best  of  my 

knowledge  and  ability,  agreeable  to  law;  and  that  I  will  not 
take,  accept,  or  receive,  directly  or  indirectly,  any  fee,  gift, 
bribe,  gratuity,  or  reward  whatsoever,  for  returning  any  man  to 
serve  as  a  juror,  or  for  making  any  false  return  on  any  process 
to  me  directed;  and  I  also  swear,  that  I  have  not  given  any 
fee,  gift,  gratuity,  reward,  or  other  thing  whatsoever,  to  any 
person,  for  his  vote  or  interest  to  procure  me  to  be  nominated 
to  the  said  oiricc ;  nor  will  I  hereafter  give  to  any  person,  such 
fee,  gratuity,  or  reward,  for  having  procured  or  contributed  to 
procure  me  to  be  nominated  thereto :  so  help  me,  God. 

STANDARD    KEEPER. 

Standard iceep-  (42.)  T,  A.  B.,  swear  (or  affirm)  that  I  will  not  stamp,  seal, 
or  give  any  certificate  for  any  steelyards,  weights,  or  measures, 
but  such  as  shall,  as  near  as  possible,  agree  with  the  standard 


Ranger. 


Register. 


Secretary  of 
State. 


Chap.  76.]  oaths.  443 

in  my  keeping :  and  that  I  will,  in  all  respects,  trnly  and  faith- 
fully discharge  and  execute  the  power  and  trust,  by  law  reposed 
in  me,  to  the  best  of  my  ability  and  capacity :  so  help  me, 
God. 

STRAY    VALUERS. 

(43.)   You  swear  (or  affirm)  that  you  will  well  and  truly  straj-s,  valuers 
view  and  appraise  the  stray,  now  to  be  valued  by  you,  without 
favor  or  partiality,  according  to  your  skill  and  ability :  so  help 
you,  God. 

SURVEYOR  FOR  THE  COUXTY. 

(44.)   The  same,  mutalis  mutandis,  with  that  of  entry-taker.    Surveyor  for 

TOBACCO   PICKER. 

(45.)    I,  A.  B.,  do  swear  (or  affirm)  that  I  will  faithfully  pick  T-^i^acco  pick- 
all  tobacco,  which  may  be  put  into  my  possession  for  that  pur- 
pose, without  fraud  or  damage  to  the  owner  :  so  help  me,  God. 

TRUSTEE   FOR   A    COUNTY. 

(46.)  I,  A.  B.,  do  solemnly  swear  (or  affirm)  that,  according  County  trus- 
to  the  best  of  my  skill  and  ability,  I  will  execute  impartially 
the    office  of  county  trustee,  for   the    county    of  ,  in 

all  things  according  to  law ;  that  I  will  duly  and  faithfully 
account  for  all  public  moneys  that  may  come  into  my  hands, 
and  will  not,  directly  or  indirectly,  apply  the  same,  or  any  part 
thereof,  to  any  other  use  than  by  law  directed :  so  help  me,  God. 

WITNESS,    TO    DEPOSE    BEFORE    THE    GRAND-JURY. 

(47.)   You  swear  (or  affirm)  that  the  evidence  you  shall  give  Witness  sent  to 
to  the  grand-jury,  upon  this  bill  of  indictment,  against  A.  B.,  g''^Q'i-J"0"- 
shall  be  the  truth,  the  whole  truth,  and  nothing  but  the  truth: 
so  help  you,  God. 

WITNESS,   IN   A   CAPITAL   TRIAL. 

(48.)   You  swear  (or  affirm)  that  the  evidence  you  shall  give  Witness,  on  a 
to  the  court  and  jury  in  this  trial,  between  the  State  and  the  '^'^P^^^  '""'• 
prisoner  at  the  bar,  shall  be  the  truth,  the  whole  truth,  and 
nothing  but  the  truth  :  so  help  you,  God. 

WITNESS,    ON   A   TRAVERSE. 

(49.)   You  swear  (or  affirm)  that  the  evidence  you  shall  give  ^''t"^'''.  on  a 
to  the  court  and  jury,  touching  this  issue  of  traverse,  between 
the  State  and  A.  B.,  shall  be  the  truth,  the  whole  truth,  and 
nothing  but  the  truth  :  so  help  you,  God. 

WITNESS,    IN    CIVIL    CASES. 

(50.)   You  swear  (or  affirm)  that  the  evidence  you  shall  give  ^''fness,  in 
,     \ ,     '  ,         1  •  •      .  1  •  i  •   1        ,         •       .    -n   Civil  cases, 

to  tlie  court  and  jury  m  this  cause,  now  on  trial,  wherein  A.  B. 

is  plaintiif,  and  C.  B.  defendant,  shall  be  the  truth,  the  whole 

truth,  and  nothing  but  the  truth :  so  help  you,  God. 


444 


OFFICES. 


[Chap.  77- 


WITNESS,   TO   PROVE   A   WILL. 

Witness,  to  (51.)   You  swear  (or  affirm)  that  you  saw  C.  D.  execute  (or 

prove  a  \M        heard  him  acknowledge  the  execution  of)  this  writing  as  his 
last  will  and  testament;  that  you  attested  it  in   his  presence 
and  at  his  request ;  and  that  at  the  time  of  its  execution,  (or 
at  the  time  its  execution  was  acknowledged,)  he  was,  in  your 
opinion,  of  sound  mind  and  disposing  memory :  so  help  you, 
God. 
Deputies  to  nd-      7.    In  all  cases  where  any  civil  officer,  in  the  discharge  of 
"}°'re^g™,'gi^  his  duties,  is  permitted  by  the  law  to  administer  an  oath,  the 
principals  may.  deputy  of  such  officer,  when  discharging  such  duties,  shall  have 
—  .    .  c.  79.    ^y^i^Qfii^y  ^o  administer  it,  provided  he  is  a  sworn  officer;  and 
the  oath  thus  administered  by  the  deputy,  shall  be  as  obliga- 
tory as   if  administered  by  the  principal  officer,  and  shall  be 
attended  with  the  same  penalties  in  case  of  false  swearing. 


CHAPTER    77. 


OFFICES. 


Section 

1.  No  person  to  hold  office  contrary  to 

the  constitution  ;  penalty  S  200. 

2.  Contracts  lor  office  void, 

3.  Sheriffs,  &c.  sworn  into  office,  consid- 

ered rightfully  in,  until,  &c.   Sheriffs, 


Section 

clerks,  clerks  and  masters,  and  regis- 
ters, to  hold  till  successor  appointed. 
4.  All  officers  to  take  the  oaths  before 
acting.  Penalty  S  600,  and  ejection 
from  office. 


No  person  to  1.  Ip  any  person  shall  presume  to  hold  any  office,  or  place 
&a'rv°t'^const'i-  "f  ^^st  or  profit,  or  be  elected  to  a  seat  in  either  house  of  the 
tution,  penalty  General  Assembly,  contrary  to  the  fourth  section  of  the  fourth 
8o°6.T     ^'  "'  article  of  the  constitution  o'f  the  State,  he  shall  forfeit  and  pay 

two  hundred  dollars,  to  any  person  who  will  sue  for  the  same. 
2.    All  bargains,  bonds,  and  assurances,  made  or  given  for 

the   purchase   or   sale  of   any  office   whatsoever,  the  sale   of 

which  is  contrary  to  law,  shall  be  void. 

'3.  Any  person  who  shall,  by  the  county  court,  be  admitted 
sworn  into  of-  and  swom  into  the  otTice  of  sheriff,  coroner,  or  constable,  shall 
rightfunyin'^^*'  be  held,  deemed,  and  taken,  by  force  of  such  admission,  to  be 
until,  &c.—  rightfully  in  such  office,  until,  by  judicial  sentence,  upon  a 
1844,0.38,3.2.^^^^  jci«;-mH/o  or  other  proper  proceeding,  he  shall  be  ousted 

therefrom,  or  his  admission  thereto  be,  in  due  course  of  law 
Sheriffs,  clerks,  declared  void;  and  sheritTs,  clerks  of  the  county  and  superior 
"'  ""(''  s"t  "'"'  courts,  registers,  clerks  and  masters  in  equity,  shall  be  deemed 
hdd  till  sue-  to  be  and  continue  in  their  respective  offices,  until  their  suc- 
*'d^j848'"''"''  cessors  shall  have  been  elected  or  appointed,  and  shall  have 
64,8.1.  '        been  duly  qualified. 

All  officers  to  4.  Every  officer  and  other  person  who  may  be  required  to 
take  the  oaths  i^\^q  ^n  outh  of  office,  or  an  oath  for  the  faithful  discharge  of 


Contracts  for 
office  void. — 1 
S.  c.  80,  s.  2. 

Sheriffs,  &c., 


Chap.  78.] 


OFFICIAL   BONDS. 


445 


any  duty  imposed  on  him,  and  also  the  oath  appointed  for  before  acting. 
such  as  hold  any  office  of  trust  or  profit  in  the  State,  shall  rnS'''e"ectment 
take  all  said  oaths,  before  entering  on  the  duties  of  the  ofiice,  from^office!°" 
or  the  duties  imposed  on  such   person,  on  pain   of  forfeiting 
five  hundred  dollars  to  tiie  wardens  of  the  poor  of  the  county, 
in  or  for  which  the  office  is  to  be  used,  and  of  being  ejected 
from  his  office  or  place  by  writ  of  quo  ivarranto. 


CHAPTER    78. 


OFFICIAL  BONDS. 


Section 

1.  Suits  on  bonds  of  clerlis,  &e.  may  be 

broiight  by  parties  injured. 

2.  Declaration  to  show  relator.     Or  party 

may  sue  in  case. 

3.  Sheriff  and  constable  liable  for  whole 

debt  put  into  his  hands. 

4.  Remedy  before  justice  against  officers 

neglecting  to  pay  over  moneys. 

5.  Summary  remedy  in  court.    Notice 

given. 


Section 

6.  D.amages  of  twelvemo'  cent,  on  money 

detained. 

7.  Names  of  justices  present  at  qualifica- 

tion of  sheriffs  and  others,  recorded. 

Such  justices  failing  to  take  bond, 

bound  as  sureties.     Copy  of  record, 

evidence. 
S.  Penalty  on  officers  not  giving  bond 

before  acting. 
9.  Irregularity  in  taking,  or  in  the  form 

of  bonds  not  to  invalidate. 


1.  EvEE,Y  person,  injured  by  the  neglect,  misconduct,  or  mis-  Suits  on  bonds 
behavior  in  office  of  any  clerk  of  the  superior  or  county  court,  may^be''  ^°' 
clerk  and  master  in  equity,  register,  entry-taker,  surveyor,  sher-  brought  by 
iff,  constable,   or  other  officer,  may  institute  a  suit  or  suits  £!!R^S°i"'^si' 
against  said  officers  or  any  of  them,  and  their  sureties,  upon  s.  i. 

their  respective  bonds  for  the  due  performance  of  their  duties 
in  office,  in  the  name  of  the  State  to  whom  the  said  bonds  are 
made  payable,  without  any  assignment  thereof;  and  no  such 
bond  shall  become  void  upon  the  first  recovery,  or  if  judgment 
shall  be  given  for  the  defendant ;  but  may  be  put  in  suit,  and 
prosecuted  from  time  to  time,  until  the  whole  penalty  shall  be 
recovered. 

2.  Any  person  who  may  bring  suit  in   manner  aforesaid.  Declaration  to 
shall  state  in  his  declaration  at  whose  instance  and  in  whose  ^''°'''  '''^'''"""" 
behalf  the  suit  is  brought;  and  he  shall  be  entitled  to  receive 

to  his  own  use  the  money  recovered.     Provided,  nevertheless,  Or  party  may 
that  nothing  herein  contained  shall  prevent  such  person  from  k  "^sV'm '72 
bringing,  at  his   election,  an   action   on  the  case  against  the    "    '  '    '  '  ' 
officer  to  recover  damages  for  his  injury. 

3.  When  a  claim  shall  be  placed  in  the  hands  of  any  sheriff  Sheriff  and 

or  constable  for  collection,  and  he  shall  not  use  due  diligence  fo "whoil  debt° 
in  collecting  the  same,  he  shall  be  liable  for  the  full  amount  of  P"tin''is 
the  claim,  notwithstanding  the  debtor  may  have  been  at  all  c.^ci*' ~  ^^"' 
times,  and  is  then,  able  to  pay  the  amount  thereof. 
38 


446  OFFICIAL   BONDS.  [ChAP.    TS' 

Remedy  before      4.  When  any  slieriff,  clerk,  coroner,  constable,  or  clerk  and 
officere'irefiect-  master,  shall  have  received  any  money,  by  virtue  of  his  office, 
ing  to  pay  over  and  shall  fail  to  pay  the  same  to  the  person  entitled  to  receive 
clT/^.T  '   '  it)  ^  justice  of  the  peace  may  issue  a  warrant  against  him  and 
his  sureties,  whether  he  be  in  office  or  not,  and  give  judgment 
for  any  sum  not  exceeding  the  jurisdiction  of  a  justice  of  the 
peace,  with  costs. 
Summary  rem-      5.  Whenever  a  sheriff,  coroner,  constable,  clerk,  or  clerk  and 
e  ymcoui-t     master,  shall  have  collected  or  received  any  money,  by  virtue 
or  under  color  of  his  office,  and  on  demand  shall  fail  to  pay 
the  same  to  the  person  entitled  to  require  the  payment  thereof, 
the  person  thereby  aggrieved  may  move  for  judgment,  in  any 
court  having  competent  jurisdiction,  against  such  officer  and 
his  sureties;  and  the  court  shall  try  the  same  and  render  judg- 
Notice  given.— ment,  at  the  term  when  the  motion  shall  be  made.     Provided, 
.   .  c.    ,  s.  .  ^^^  days'  notice  in  writing,  of  the  motion  shall  have  been  pre- 
viously given. 
Damages  of  12       6.  Whenever  money  received  as  aforesaid,  shall  be  unlaw- 
moneyde°       fully  detained   by  any  of  said  officers,  and  the  same  shall  be 
taiiied.— K.  S.  sucd  for,  in  any  mode  whatever,  the  plaintiff  shall  be  entitled 
''■    '  '■  ■        to  recover,  besides  the  sum  detained,  damages  at  the  rate  of 
twelve  j)er  centum  per  annum,  from  the  time  of  detention  until 
payment.     Provided,  that  the  officer  shall  not  be  liable   for 
such  damages,  if  he  shall,  on  the  demand,  have  tendered  the 
money  received,  in  any  notes  of  the  banks  of  this  State  of  par 
value,  unless  the  creditor  shall  have  notified  the  officer  to  col- 
lect specie. 
Names  of  jns-        7.  It  shall  be  the  indispensable  duty  of  the  clerk  of  the 
qudificatiou  ^^  county  court  to  record  and  enter  on   his  docket  the  names  of 
of  sheriff  and    those  justices  of  the  peace,  who  shall  be  on  the  bench  at  the 
otiiers  record-  ^j,^^g  ^f  ^j^^  qualification   of  the  sheriff,  coroner,  clerk,  entry- 
taker,  register,  and  constables ;  and  if  the  clerk  shall  neglect  to 
make  such  record,  and  be  thereof  convicted  in   the   superior 
court,  he  shall  forfeit  his  office.    And  should  any  of  the  officers 
above  named  be  permitted  to   officiate   as   such,  and  to  dis- 
charge any  of  the  duties  of  their  respective  appointments,  with- 
out having  first  qualified  and  given  bond  with  security,  as  re- 
quired by  law,  the  justices   of  the   peace,  who  were   on  the 
bench  at  the  time  of  the  appointment  of  the  officer  so  officiat- 
Sueh  justices    iug  and  acting  under  color  of  his  appointment,  shall  be  consid- 
bond^ouud'as  ^''^'^  bound,  to  all  intents  and  purposes,  as  the  sureties  of  the 
sureties.  officer,  in  the  same  manner  as  though  they  had  been  formally 

bound  by  executing  bond  with  and  as  the  sureties  of  such  offi- 
cer, and  may  be  sucd  accordingly,  by  any  jicrson  having  cause 
of  action  against  such  officer  for  any  default ;  and  in  all  suits 
Copy  of  record  and  proceedings  under  this  section,  a  copy  of  the  record  of  the 
evidence. --R.  court,  attested   by  the   clerk,  shall  be  sufficient  evidence  that 

S.  c.  81,  8.  6.      ,,  '  ii       u         u 

they  were  on  the  bench. 
Penalty  on  offi-      8.  Every  officer  or  other  person  of  whom  a  bond  is  required 
bondTJfore"'^  for   the   faithful   discharge  of  the  duties   of  his  office,   shall 
acting.;  execute  the  same  before  entering   on  the   duties  thereof,  on 


Chap.  79.] 


ORDINARIES   AND   INNS. 


447 


pain  of  forfeiting  five  hundred  dollars  to  the  wardens  of  the 
poor  of  the  county  in  which  the  duties  are  to  be  discharged, 
and  of  being  ejected  from  his  office  by  writ  of  quo  ivarranLo. 

9.   Whenever  any  instrument  shall  be  taken  by,  or  received  Irregularity  in 
under  the  sanction  of  a  court  of  record,  or  by  any  persons  act-  tiie'iOTm  of" 
ing  under  or  in  virtue  of  any  public  authority,  purporting  to  be  Ijonds  uotto 
a  bond  executed  to  the  State,  for  the  performance  of  any  duty  is42,  c!^6°i.~ 
belonging  to  any  office  or  appointment,  such  instrument,  not- 
withstanding any  irregularity  or  invalidity  in  the  conferring  of 
the  office  or  in  making  of  the  appointment,  or  any  variance  in 
the  penalty  or  condition  of  the  instrument  from  the  provisions 
prescribed  by  law,  shall  be  valid  and  may  be  put  in  suit  in  the 
name  of  the  State,  for  the  benefit  of  the  person  injured,  by  a 
breach  of  the  condition  thereof,  in  the  same  manner  as  if  the 
office  had  been  duly  conferred  or  the  appointment  duly  made, 
and  as  if  the  penalty  and  condition  of  the  instrument  had  con- 
formed to  the  provisions  of  law.     Provided,  that  the  instru- 
ment be  in  all  other  respects  executed  with  the  solemnities 
■which  are  required  by  law.     And  provided  further,  that  no 
action  shall  be  sustained  thereon  because  of  a  breach  of  any 
condition  thereof,  or  of  any  part  of  the  condition  thereof,  which 
is  contrary  to  law. 


Sect.  1.   Vilio  may  be  sitetl,  6  Ire.  279.    Neio  duty,  10  Ire.  229.    Bonds  cumulative, 
when,  9  Ire.  69,  7  lb.  IDS;  several  actions,  6  lb.  347. 

Sect.  3.   Officer  must  be  agent  to  collect,  6  Ire.  281,  11  lb.  134,  9  lb.  20. 
Sect.  5.  Act  done  by  color  of  office,  8  Ire.  415,  lb.  513,  11  lb.  141. 
Sect.  8.   Officer  de  facto,  8  Ire.  201,  4  lb.  355,  lb.  368,  3  lb.  171. 
Sect.  9.  7  Ire.  344;  lb.  359;  5  lb.  105. 


CHAPTER    79. 


ORDINAKIES   AND  INNS. 


Section 

1.  License  to  l^ecp  inn,  tavern,  or  ordi- 

nary, how  obtained.     Bond   given. 
Its  condition. 

2.  Najnes  of  justices  taking  bond,  re- 

corded. 

3.  Rates  of  charges  established  by  jus- 

tices.   Duty  of  ordinary  keepers. 


Section 

4.  Ordinary  keeper,   or  retailer,  not  to 

credit  for  liquors  over  ten  dollars. 

5.  Penalty  on  ordinaiy  keepers,  enter- 

taining slaves  or  sailors,  &c. 

6.  License  to  retail   spirituous  liquors, 

how  obtained. 

7.  Houses  of  private  entertainment  ex- 

cepted from  first  section. 


1.   Every  person  wishing  to  keep  a  common  inn,  tavern.  License  to  keep 
or  ordinary,  for  the  entertainment  of  travellers   and  others,  |,';.i;nan-^''l"i," 
shall  apply  to  the  court  of  pleas  and  quarter-sessions  for  li- obtained!  — R. 
cense  to  do  so  ;  and,  unless  good  cause  be  shown  to  the  con-  ®"  '^'  ^^'  *"  ^' 
trary,  the  court  shall  grant  the  license  for  one  year,  provided 


448  ORDINARIES   AND    INNS.  [ChAP.    79. 

Bond  friven.      the  applicant  shall  execute   a  bond  of  one  thousand  dollars 
Its  condition,     p^jyaijie  ^^  the  State  of  North  Carolina,  and  conditioned  for 
constantly   finding   and   providing  good  and  wholesome  diet 
and  lodging  for  his  guests,  and  stable  and  provender  for  their 
horses  ;  and  also,  to  safely  keep  for  his  guests  all  such  articles 
and  property   as   may  come  to   his   care   and  charge  as  inn- 
keeper.    And  on  a  breach  of  any  condition  thereof,  any  per- 
son injured  may  put  the  same  in  suit. 
Names  of  jus-       2.    The  clerk  of  the  court  shall  record  the  names  of  the  jus- 
bond 'recOTded.  tices  on  the  bench  at  the  time   of  the  taking  said  bond,  and 

issue  a  license. 
Rates  of  3.    The  justices  shall,  once  a  year,  or  oftener  if  necessary,  at 

Ushefby'jus-  ^'i^  ^1"-*^  court  to  be  held  after  the  first  day  of  January,  rate  the 
tices.  prices  of  liquor,  diet,  lodging,  and   provender,  to  be  taken  in 

Dutyofordina-  their  counties  by  keepers  of  inns,  taverns,  and  ordinaries;  and 
^c.^sl^stZ     every  such  keeper  shall,  within  thirty  days  after  such  rates  are 
settled,  set  the  same  up  in  the  common  entertaining  room  of 
the  inn,  tavern,  or  ordinary,  there  to  be  kept  until  the  rates 
are  altered,  on  pain  of  forfeiting  forty  dollars. 
Ordinary  keep-      4.    No  keeper  of  an  inn,  tavern,  or  ordinary,  or  retailer  of 
not °o  credit  for  I'l'-'"^^'''  by  the  small  measure,  shall  sell  to  any  person  on  credit, 
liquors  over  ten  liquors  to  a  greater  amount  than  ten  dollars,  unless  the  person 
e^srsT^^  credited,  sign  a  book  or  note  in  the  presence  of  a  witness,  in 
acknowledgment  of  the  debt,  under  the  penalty  of  losing  the 
money  so  credited  ;  and  in  any  action  brought  for  recovery  of 
such  debt,  the  general  issue  may  be  pleaded,  and  the  matter 
of  defence  allowed  by  this  section  given  in  evidence. 
Penalty  on  or-      5.    If  any  keeper  of  an  inn,  tavern,  or  ordinary,  or  vendor 
entertoinbg^'^^'  o''  retailer  of  s])irituous  or  other  liquors,  shall  entertain  slaves 
slaves  or  sail-   against  the  will   of  their   owners,   or  common  sailors  against 
S.  c.  82T6.     the  direction  of  the  masters  of  vessels  to  which  they  belong, 
he  shall  forfeit  and  pay  one  hundred  dollars  to  the  use  of  the 
owner  of  the  slave,  or  master  of  the  vessel. 
License  to  re-       6.    Any  person   wishing  to   retail  spirituous  liquors  by  a 
liquors"  how"^    measure   less   than  a  quart,  at    any   particular  place  in   the 
obtained.  — R.  county,  shall  apply  to  the  court  of  pleas  and  quarter-sessions 
S.  c.  82, 6.  7.     q£  tijg  county  and  obtain  an  order  therefor,  for  one  year  and 
no  longer ;  and  the  same  shall  be  granted  by  the  court,  seven 
justices  being  on  the  bench,  only  to  such  free  white  person  as 
shall  show  his  good  moral  character  by  at  least  two  witnesses 
of  known  respectability,  to  whom  the  character  of  the  appli- 
cant has  been  known  for  at  least  one   year ;  and  the   clerk, 
upon  the  grant  of  such  order,  shall  give  to  the  applicant  a  cer- 
tificate thereof;  upon  which  he  may  obtain  a  license  in  the 
manner  provided  in  the  chapter  entitled  "  Revenue." 
Houses  of  pri-       7.    Nothing  in   the  first  section  of  this   chapter  contained, 

vate  entertain-    iiii  .  1  j_         j.iii  cu 

mcnt  excepted  shall  be  SO  construed  as  to  extend  to  keepers  of  houses,  com- 
from  first  sec-  monly  Called  houses  of  private  entertainment. 


Chap.  81.]  oysters,  and  other  fish. 


449 


CHAPTER    80. 

OVERSEERS. 

Overseer,  leaving  his  employer,  to  forfeit  wages. 

1.    If  any  person  shall  contract  to  serve  as   an   overseer,  Overseer,  leav- 
upon  wages,  or  a  share  of  the  produce,  and  shall  absent  him-  er°to'for!feit°'*'' 
self,  or  depart  from  the  service  of  his  employer  before  the  time  wages.— R.  s. 
mentioned  in  his  agreement  or  contract  sliall  be  expired,  he  °'     '  ^'  ^' 
shall  forfeit  all  right  to  wages  or  share  of  the  produce. 


CHAPTER    81. 


OYSTERS,  AND   OTHER  FISH. 


Section 

1.  Oysters  not  to  be  transported  without 

the  State.    Penalty.    Exceptions. 

2.  Duty  of  magistrates  in  apprehending 

offenders. 

3.  Penalty  for  using  dragnets  in  Pamlico 

Sound  to  catch  terrapins  ;  or  instru- 
ments, except  tongs,  to  take  oysters, 
unless,  &c. 

4.  Net,  &c.  not  to  be  used  in  half  mile  of 

marshes  between  Croatan  and  Pam- 
lico Sounds. 

5.  Non-residents  forbid  to  fish,  for  sale, 

in  waters  of  the  State.    Proviso. 

6.  Penalty  therefor,  SIOO. 


Section 

7.  In  what  direction  nets  to  be  set  in 
Pamlico  Sound. 

8.  Pishing  stakes  in  Pamlico  and  Albe- 
marle Sounds,  &c.,  to  be  removed 
by  June. 

9.  Masters  of  vessels  wantonly  injuring 
seines  or  nets,  penalty  on. 

10.  Fish  offal  not  to  be  cast  into  navi- 
gable waters,  &c. 

11.  Penalty  for  setting  nets  across  navi-" 
gable  waters,  or  obstructing  fish. 

12.  For  erecting  stand,  &c.,  in  waters 
required  to  be  left  open  for  passage 
offish,  or  not  keeping  slopes  open. 

13.  Offences  herein  created,  indictable. 

1.  If  any  master  or  skipper  of  a  vessel  shall  transport  oysters, 
taken  from  any  place  within  the  State,  to  any  place  beyond 
the  limits  thereof,  he  shall  forfeit  and  pay  two  hundred  dollars 
for  every  offence.  Provided,  that  nothing  herein  contained 
shall  prevent  the  carrying  of  oysters  into  the  north  and  north- 
east rivers  having  their  source  in  the  State  of  Virginia,  nor 
the  exportation  to  the  West  Indies  of  pickled  oysters,  not  ex- 
ceeding in  quantity  sixty  gallons  at  one  time.  And  provided 
further,  that  it  shall  be  lawful  for  any  person,  who  shall  have 
planted,  cultivated,  and  gi-own  oysters  in  any  private  oyster 
ground  in  the  State,  to  export  the  same  beyond  the  limits 
thereof. 

2.  Whenever  a  person  shall  make  affidavit  that  he  has  good 
cause  to  believe,  that  any  master  or  skipper  of  a  vessel  has 
received  oysters  on  board  his  vessel,  for  the  purpose  of  trans 

38* 


Oysters  not  to 
be  transported 
without  the 
State;  penalty. 

Exceptions. — 
R.  S.  c.  84,  s.  1, 
4.— 1854,  0.  33. 


Duty  of  magis- 
trates in  ap- 
prehending 
olTenihn-s. — R. 
S.  c.  64,  6.  3. 


450 


OYSTERS,   AND    OTHER   FISH. 


[Chap.  81. 


Pennlty  for 
using  dragnets 
in  Pamlico 
Sound  to  catch 
terrapins;  or 
instruments, 
except  tongs, 
to  take  oysters, 
unless,  &o. — R. 
S.  c.  84,  s.  4.— 
1842,0.63; 
1854,  c.  33. 


Net,  &c.,  not  to 
be  used  in  lialf 
mile  of  marshes 
between  Croa- 
tan  and  Pamli- 
co Sounds. — 
1844,  c.  40,  s.  3. 

Non-residents 
forbid  to  fish 
for  sale  in  wa- 
ters of  the 
State. 


Proviso. — 
1814,  c.  10,6.1. 


Penalty  there- 
for, one  huB- 
dred  dollars. — 
1844,  c.  40,  s.  2. 


In  what  direc- 
tion nets  to  bo 
set  in  Pamlico 
Sound.— 1844, 
C.  40,  8.  6. 


porting  them  out  of  the  State,  any  justice  within  whose  juris- 
diction such  vessel  may  be,  may  issue  his  warrant  for  the 
immediate  apprehension  and  bringing  of  such  master  or  skip- 
per before  some  magistrate  of  the  same  county;  and  the  jus- 
tice, before  whom  such  person  may  be  brought,  if  there  is  good 
cause  to  believe  that  a  violation  of  the  preceding  section  is 
intended,  may  commit  the  master  or  skipper  to  the  jail  of  his 
county,  unless  he  shall  enter  into  recognizance  with  sufficient 
security,  not  exceeding  two  hundred  dollars,  upon  condition  to 
appear  at  the  next  court  to  be  held  for  the  county,  and  answer 
such  charge  as  may  be  preferred  against  him. 

3.  If  any  person,  who  is  not  a  citizen  of  the  State,  shall  use 
dragnets  in  the  waters  of  Pamlico  Sound,  for  the  purpose  of 
catching  terrapins ;  or  if  any  person  whatever  shall  use  any 
drag,  or  other  instrument,  except  such  tongs  as  are  generally 
used  for  catching  of  oysters,  within  any  of  the  waters  of  the 
State;  the  person  so  offending,  if  a  free  man,  shall  forfeit  and 
pay  one  hundred  dollars,  or  if  a  slave,  shall  receive  thirty-nine 
lashes.  Provided,  nevertheless,  that  the  owner  or  tenant  of 
any  private  oyster  ground  may  use  any  scoop,  drag,  or  other 
instrument,  to  take  oysters  therein. 

4.  No  person,  for  the  purpose  of  taking  fish  between  the 
first  day  of  February  and  the  fii-st  day  of  May  of  tlie  same 
year,  shall  use  or  cause  to  be  used,  at  or  within  half  a  mile  of 
the  marshes  separating  the  waters  of  Croatan  and  Pamlico 
Sounds,  any  weir,  hedge,  net,  or  seine. 

5.  No  person  shall  use,  or  cause  to  be  used,  in  any  of  the 
navigable  waters  of  the  State,  any  weir,  hedge,  net,  or  seine, 
for  the  purpose  of  taking  fish  for  sale  or  exportation,  unless  he 
shall  have  resided  continuously  in  the  State,  at  least  twelve 
months  next  preceding  the  day  on  which  he  shall  begin  to 
take  fish ;  nor  shall  any  person  assist  in  using,  or  be  interested 
in  using  or  causing  to  be  used,  in  any  of  such  waters,  for  the 
purpose  aforesaid,  any  weir,  hedge,  net,  or  seine,  in  the  use  of 
which  any  such  non-resident  person  may  have  an  interest. 
Provided,  that  nothing  herein  contained  shall  prevent  any  per- 
son from  fishing  with  seines  hauled  to  the  shore  at  any  fishery, 
the  title  to  which  fishery  or  any  interest  therein  may  have  been 
acquired  by  such  person,  by  purchase  or  inheritance.  And  pro- 
vided further,  that  this  section  shall  not  extend  to  servants 
employed  to  fish,  by  any  person  allowed  to  fish  in  the  naviga- 
ble waters  of  the  State. 

6.  Any  person,  who  shall  violate  any  of  the  provisions  of 
the  preceding  section,  shall,  for  every  offence,  forfeit  one  hun- 
dred dollars ;  one  half  to  the  use  of  the  person  suing  for  the 
same,  and  the  other  half  to  the  use  of  the  wardens  of  tlie  poor 
of  the  county  where  the  offence  is  committed. 

7.  Every  net,  (unless  the  same  be  a  dragnet  and  hauled  to 
the  shore,)  which  may  be  used  for  catching  shad  in  that  por- 
tion of  the  waters  of  Pamlico  Sound,  lying  between  a  line 
drawn  eastwardly  from  Stumpy  Poinf,  and  the  southern  side 


Chap.  81.]  oysters,  and  other  fish.  451 

of  Long  Shoal  in  said  Sound,  shall  be  set  and  fixed  in  said 
•waters,  in  a  direction  from  north  to  south,  and  shall  not  be 
used  in  any  other  manner;  and  any  person,  offending  against 
this  section,  shall,  for  every  offence,  forfeit  five  dollars. 

8.  Every  person,  who  may  set  or  use,  in  anv  of  the  naviga-  F'-'iiing  stakes 
ble   waters    of   Pamlico,   Croatan,   Currituck,   and    Albemarle  AiblXunds 
Sounds,  or  their  tributaries,  any  fishing  stake  or  pole,  shall  re-  &c.,  to  be  re- 
move the  same  by  Lhe  first  day  of  June ;  and  every  person,  jli''ne'^._i'844  c. 
offending  against  this   section,  shall,  for  every  stake  not  so  *».  s.  7;  ism, 
removed,  forfeit  and  pay  five  dollars.  '^'    ' 

9.  Any  master  or  other  person,  having  the  management  or  Masters  of  ves- 
control  of  a  vessel  or  boat  of  any  kind,  in  the  navigable  waters  injuring  semes 
of  the  State,  who  shall  wilfully,  wantonly,  and  unnecessarily  <"•  nets. 

do  injury  to  any  seine  or  net,  which  may  be  lawfully  hauled,  1*848''^^ e^T 
set,  or  fixed  in  said  waters  for  the  purpose  of  taking  fish,  shall  i,  2.' 
forfeit  and  pay  to  the  owner  of  such  seine  or  net,  or  other  per- 
son injured  by  such  act,  one  hundred  dollars. 

10.  No  person  shall  throw,  or  cause  to  be  thrown,  into  the  Fi'h  offal  not 
channel  of  any  of  the  navigable  waters  of  the  State,  any  fish  f,avigabie  w^ 
offal,  in  any  quantity  that  shall  be  deemed  likely  to  hinder  or  ters,°&c.— 
prevent  the  passage  offish  along  such  channel.  1844,  c.  40,  s.  4. 

11.  No  person  shall  set  a  net  of  any  description  across  the  Penalty  for  set- 
main  channel  of  any  navigable  river  or  creek,  or  shall  erect,  so  „"!  "tream™^' 
as  to  extend  more  than  three  fourths  of  the  distance  across  such  or  obstra'ctin'g 
channel,  any  stand,  dam,  weir,  hedge,  or  other  obstruction  to  losTib^ii^' 
the  passage  of  fish ;  and  every  person  so  offending  shall,  if  a      ' 

free  man,  forfeit  and  pay  forty  dollars,  or,  if  a  free  negro  or 
slave,  shall  receive  thirty-nine  lashes. 

12.  Every  person  who  shall  erect  any  stand,  dam,  weir,  or  For  erecting 
hedge,  in  such  part  of  any  river  or  creek  that  may  be  left  open  watos^ft'o"en 
for  the  passage   of  fish  ;    or  who,   having    erected   any  dam  for  passage  of 
where  the  same  was  allowed,  and  shall  not  make  and  keep  keeprn<r"^o  es 
open    such    slope,    as    the    commissioners    appointed   as    pre-  open.— R.  s.  c. 
scribed  in  the  chapter  entitled  "  Rivers  and  Creeks"  may  judge  c° e'e^' ^■~''^**' 
necessary,  shall  forfeit  and  pay  ten  dollars  for  every  twenty- 
four  hours  he  shall  not  keep  open,  or  shall  obstruct,  such  pas- 
sage or  slope. 

13.  Every  person  who  shall  commit  any  of  the  offences  oaences herein 
in  this  chapter  created,  shall  be  deemed  to  be  guilty  of  a  mis-  aWe^^K^s  ^c" 
demeanor.  84,  s.  1, 4;  c. ' 

103,  s.  10— 

1644,  c.  40; 
1848,0.61; 
1852,  c.  13. 


452 


[Chap.  82. 


CHAPTER    82. 


PARTITION. 


Section 

1.  Tenants  in  common  may  have  parti- 

tion, by  ccurts.    How  to  proceed. 

2.  Of  land  in  difTerent  Bounties,  made  in 

superior  court. 

3.  To   be   equal,  if  practicable.     Sums 

charged  on  minors,  not  payable  till 
of  age.  I 

4.  But  to  bear  interest,  and  guardian  to 

pay  when  he  has  assets. 

5.  Commissioners  and  costs  paid  as  may 

be  decreed. 

6.  Sale  to  prevent  injury  by  actual  par- 

tition, may  be  decreed. 

7.  Also  when  land  required  for  public 

purposes.  Proceeds  secured  for  in- 
fants,yeme  coverts,  persons  Tion  contr- 
pos,  &c. 

8.  Sales,  where  made. 

9.  When  there  is  dower,  court  may  de- 

cree sale  and  apportion  dower. 


Section 

10.  Proceedings  where  lands  lie  partly  in 

this  State,  and  partly  In  another. 

11.  Court  may  decree  partition  thereof. 

12.  Commissioners  appointed.  Their  duty 

in  making  partition.    What  final  de- 
cree, court  may  make. 

13.  Decree  for  partition  in  another  State, 

when  enforced  in  this. 

14.  Court  to  judge  whether  mother  St.ate 

has  passed  a  law  in  conformity  to 
this. 

15.  Time  allowed  to  feme  coverts,  infants, 

&c. 

16.  Pay  of  commissioners. 

17.  Personal  property,  partition  of,  how 

made. 

18.  When  sold  for  partition. 

19.  Infant  to  have  guardian. 

20.  Pay  of  commissioners  acting  in  the 

State. 


Tenants  in  1.  The  superior  and  county  courts,  and  courts  of  equity,  on 

havemrtuhm  Petition  of  one  or  more  persons  claiming  any  real  estate  as 
by  courts.  tenants  in  common,  shall  appoint  five  commissioners  to  divide 
ceed— l^S  c  ^"'^  appropriate  the  same,  or  so  much  thereof  as  shall  be 
85,  s!i.  prayed  for,   and  the  court  shall  judge   proper  and  requisite. 

Said  commissioners  shall  be  summoned  by  the  sheriff  to  meet 
on  the  premises,  and  shall  be  sworn  by  the  sheriff,  or  some  jus- 
tice of  the  peace,  to  do  justice  among  the  claimants  according 
to  their  best  skill  and  ability ;  and  thereupon  they,  or  a  major- 
ity of  them,  shall  divide  the  said  land;  and  in  so  doing  are 
empowered  to  charge  the  more  valuable  dividends  with  such 
sums,  to  be  paid  to  the  dividends  of  inferior  value,  as  they 
shall  judge  necessary,  in  order  to  make  an  equitable  division. 
And  the  commissioners  as  soon  as  they  can,  shall  make  a  re- 
turn of  their  proceedings,  under  their  hands,  ascertaining  with 
precision  the  different  tracts  or  parcels  of  land,  lots,  or  houses, 
with  actual  surveys  of  the  same  when  necessary ;  which  re- 
turn when  confirmed  shall  be  enrolled  and  certified  to  the 
register  and  registered  in  the  office  of  the  county,  where  such 
lands,  lots,  or  houses  may  lie  or  be  situated ;  and  the  return 
shall  be  binding  among,  and  between  the  claimants,  their  heirs 
and  assigns. 
Of  land  in  dif-  2.  In  cases  where  the  real  estate  lies  in  several  counties,  the 
made  iTsup?'  Petition  shall  be  exhibited  in  the  superior  court  of  any  one  of 
court.— K.  s.c.  the  counties  in  which  a  part  thereof  may  lie ;  and  the  proceed- 


Chap.  82.]  partition.  453 

ings  in  all  such  petitions  shall  be  the  same  as  in  other  peti- 
tions. 

3.  The  commissioners   shall  divide   said  lands    into   equal  To  be  equal,  if 
shares  in  point  of  value,  as   nearly  as  possible,  by  a  subdivis-  sum'' char'ed 
ion  of  the  more  valuable  ti-act  or  tracts  ;  and  in  case  the  situ-  on  mhwR^fot 
ation  of  the  estate  is  such,  that  an  equal  division  cannot  be 'JIJ^''^'^ '^' "'' 
made  without  injury  to  the  tenants  in  common,  and  some  of  85,  s.  3.' 
them  are  obliged  to  be  charged  with  money  to  be  paid  to  the 
dividends  of  inferior  value,  then  the  money  shall  not  be  pay- 
able until  the  person  charged,  if  a  minor,  shall  arrive  at  the  age 

of  twenty-one  years. 

4.  The  sums  due  from  the  more  valuable  dividends  shall  But  to  bear  in- 
bear  interest  until  paid.  Provided  ahcays,  that  the  guardian  guardi,4°to pay 
of  the  minor,  to  whom  a  more  valuable  dividend  shall  fall,  ivhen  assets. — 
shall  pay  such  sums,  whenever  assets  shall  come  into  his  ^'  ^"  °'  ^^' '"  *' 
hands ;  and  if  it  shall  appear  that  the  guardian  shall  have  had 

assets  which  he  did  not  apply,  he  shall  pay  out  of  his  own 
proper  estate,  any  interest  which  shall  have  accrued  in  conse- 
quence of  such  failure. 

5.  The  commissioners,  for  their  services,  shall  be  allowed  Gommission- 
whatever  the   court  shall   adjudge  to  be  adequate;  and  the  p!^ij°f  ™^'\e 
same,  and  the  expenses  incurred  for  surveyors  or  otherwise,  decreed.— R.  s. 
and  all  other  costs  of  the  petition,  shall  be  paid  as  the  court ''"  ^^'  ^'  ^' 
may  decree. 

6.  Whenever  application  for  partition  of  real  estate  shall  be  Sale,  to  prevent 
made  to  a  court  of  equity,  and  it  shall  be  suggested  and  made  '"jf'-y  byactu- 

, ,      ,  i_       I  •  •  1  .  ,  .       al  partition, 

appear,  tnat  an  actual  partition  cannot  be  made  without  in-  may  be  de- 
jury  to  some  or  all  of  the  parties  interested,  the  court  may  ^^'^''^'^•— ^' ^- <=• 
order  a  sale  of  the  property  on  such  terms  as  may  be  deemed     ' 
just  and  reasonable. 

7.  And  whenever  any  joint-tenants,  or  tenants  in  common.  Also  when 
or  the  guardian  of  such,  on  oath  and  by  a  petition  or  bill  in  '/""^  required 

•i.     X  1  ■    1       11  .  ,      r     ,,  ',  ,  .for  public  pur- 

equity  to  which  all  persons  interested  shall  be  made  parties,  poses. 

shall  state  that  their  lands  are  required  for  public  purposes, 

and  that  the  interest  of  the  proprietors  requires  that  there  shall 

be  a  sale  thereof,  and  the  facts  shall  be  ascertained  to  be  true, 

the  court  may  order  a  sale  of  said  lands,  or  of  such  parts  as 

it  may  judge  necessary,  in  the  manner  and  on  the  terms  it 

shall  deem  expedient.    Provided,  that  whenever  a  sale  shall  be  Proceeds  se- 

made  under  this  or  the  preceding  section,  and  any  party  shall  J"?''  S"""" 

V  •    c      i.        J-  ,  ••  1,  1  tants,  feme  co- 

De  an  iniant,  2.jeme  covert,  non  compos,  imprisoned,  or  beyond  rews,  persons 
the  limits  of  the  State,  the  court  shall  decree  the  share  of  such  !!k "s"T'^f  "^^ 
person  in  the  proceeds  of  sale,  to  be  invested  or  settled  so  that  s.  7,' 8." "'     ' 
the  same  be  secured  unto  such  person,  or  his  real  represent- 
atives. 

8.  The  court,  in  its  discretion,  may  direct  the  sale  of  real  Sales -nhere 
estate  decreed  to  be  sold,  to  be  made  on  the  premises,  or  at  ™5"^s^-^^- ^- '^• 
any  place  within  the  county,  in  which  the  estate  or  some  part 

thereof  is  situated  :  and  when  there  shall  be  no  such  direction, 
it  shall  be  made  at  the  place  prescribed  for  public  sales. 

9.  Whenever  there  shall  be  dower  or  a  right  of  dower  on  TMion  there  is 

dower,  court 


454  PARTITION.  [Chap.  82. 

may  decree       any  lands,  petitioned  to  be  sold  for  the  causes  aforesaid,  the 
tron  dowCT.— '^"  person  entitled  to  the  dower  or  right  of  dower,  may  join  in  the 
R.  S.  c.  85,  s.    petition  ;  and  on  a  decree  of  sale,  the  interest  of  one  third  of 
the   proceeds  shall  be   secured  to  tlie  person  entitled  to  the 
dower  or  right  of  dower ;  or  the  value  thereof  shall  be  ascer- 
tained, and  paid  out  of  the  proceeds  to  such  person  abso- 
lutely. 
^toelnSiie      ^^-  Whenever  on  the  death  of  any  person,  his  lands  in  this 
partly  in  this     State,  and  in  another  State,  shall  descend  or  be  devised  to 
lytn'^kuoth'er''"  Several  persons,  who,  by  the  laws  of  this  and  the  other  State, 
— R.  S.  c.  86,    shall  hold  in  the  lands  undivided  estates  as  tenants  in  com- 
'•  ^^-  mon,  or  by  any  other  undivided  tenancy,  and  such  heirs  or 

devisees  cannot,  without  suit,  have  partition  for  want  of  con- 
sent, or  because  of  inability  in  any  of  the  eotenants,  then,  if 
such  deceased  person  shall  have  been  at  the  time  of  his  death, 
a  resident  of  this  State,  or  not  then  a  resident  of  any  of  the 
States,  in  which  his  lands  lie,  and  in  the  last  case  the  most 
valuable  part  of  such  lands  shall  lie  in  this  State,  such  heir  or 
devisee,  or  any  person  claiming  under  him,  may  file  a  bill  in 
the  court  of  equity  for  the  county  where  the  deceased  resided 
at  his  death,  or  where  any  part  of  the  land  lies  in  this  State, 
setting  forth  all  the  lands  in  which  the  plaintiff  has  an  undi- 
vided estate,  without  and  within  the  State,  described  by  their 
names  and  boundaries  or  by  the  adjoining  tracts,  and  also  the 
estate  the  deceased  had  in  them,  and  the  supposed  value  of 
the  lands  in  each  State,  and  the  share  in  severalty  to  which 
the  plaintiff  and  each  of  his  eotenants  is  entitled,  under  the 
laws  of  the  several  States,  and  praying  for  partition  to  be 
made  of  all  the  tracts,  according  to  their  respective  interests, 
and  the  material  facts  set  forth  in  the  bill  shall  be  verified  by 
the  affidavit  of  the  plaintiff  or  his  guardian,  or  other  person, 
at  the  discretion  of  the  court;  and  all  persons  concerned  in 
interest  in  the  lands,  shall  be  made  parties,  according  to  the 
practice  of  the  courts  of  equity  in  this  State. 
Court  raaj^  de-  11.  On  the  hearing  of  the  bill,  the  court  may  decree  a 
thereof.-R?°s.  Partition  ;  and  shall  allot  in  severalty  to  each  tenant  his  just 
c.  86,  s.  13.  share  of  the  lands,  according  to  the  value  of  his  interest  in 
the  same,  by  the  laws  of  the  several  States  in  which  they 
are  situate. 
apiMinted?"^"  ^^'  "^^^  court  making  such  decree,  shall  issue  a  commission 
Tiieir  duty  in  to  fivc  respectable  freeholders  in  this  or  any  State,  where  any 
^g^'°S  P"'*-  part  of  the  land  may  lie,  unconnected  by  blood  or  interest  with 
the  parties,  directing  them  or  any  three  of  them,  to  make  par- 
tition between  the  eotenants,  plaintiffs,  and  defendants  in  said 
bill,  and  to  assign  each  his  respective  share  in  value,  in  sever- 
alty, in  any  tract  or  tracts  in  any  or  all  the  States ;  and  before 
making  the  allotment  the  commissioners  shall  make  a  valua- 
tion of  all  the  lands  held  by  the  eotenants,  in  all  the  said 
States ;  and  where  they  cannot,  without  injury  to  the  value  of 
some  shares,  maice  an  exact  division  of  the  lands,  they  shall 
charge  the  more  valuable  dividends  with  money,  to  be  paid  to 


Chap.  82.]  partition.  455 

the  tenant  of  a  less  valuable  dividend,  to  make  equality  of 
partition  ;  and  they  shall  report  their  proceedings  as  they  may 
be  directed,  and  the  report  shall  contain  a  valuation  of  all  the 
estate  in  the  lands  in  this  and  tiie  other  State,  and  the  division 
among  the  cotenants,  according  to  such  valuation ;  and  the 
court  may  confirm  such  report,  or,  on  sufRcient  cause  shown, 
may  correct  and  alter  it,  or  set  it  aside  and  order  a  new  com- 
mission ;  and  where  any  sum  is  charged  upon  a  more  valuable 
dividend,  the  court  may  direct,  if  the  tenant  taking  such  a 
dividend  be  an  infant,  (or,  if  otherwise,  it  seem  to  the  court 
equitable,)  that  the  sum  charged  shall  not  be  paid  until  a  future 
day,  and  that  the  same  shall  bear  interest  at  a  rate  not  greater 
than  allowed  in  this  State.  Provided  ahoai/s,  that  the  tenant  of 
the  larger  dividend  may  discharge  himself  from  accruing  interest 
by  paying  the  whole  amount  due  at  anytime;  and  the  sum 
due  from  the  greater  dividend  shall  be  a  charge  on  the  land, 
into  whose  hand  soever  it  may  come,  although  it  may  be  taken 
without  notice  ;  and  the  court  shall,  upon  the  confirmation  of 
any  report  of  the  commissioners,  make  a  final  decree :  And  what  final  de- 
where  all  the  parties  are  within  the  jurisdiction  of  this  court, '^'''^^ '^^I,' "=^5' 
the  court  shall,  by  the  usual  proceedings  iu  equity,  direct  and  85,  s.  14.  ' 
compel  the  parties  to  execute  and  deliver  deeds  and  assur- 
ances, sufFicient,  by  the  laws  of  this  State  and  the  other  States,  to 
give  the  partition  full  force  and  validity  in  all  the  States ;  and 
in  case  any  of  the  parties  are  under  such  disabilities  that  they 
cannot  execute  such  assurances,  or  are  without  the  jurisdiction 
of  the  court,  then  the  court,  upon  receiving  evidence  from  the 
plaintiff,  that,  by  a  law  of  the  other  State  in  which  lie  the 
parts  of  the  lands  described  in  the  bill  to  be  without  this 
State,  the  decree  can  have  eflTect  thereon,  shall  direct  the  de- 
cree to  be  enrolled,  and  a  copy  of  it  shall  be  registered  in  the 
register's  office  of  all  the  counties  within  this  State,  where  any 
of  the  lands  lie;  and  a  copy  shall  be  also  furnished  to  the 
plaiutifT  or  other  party  interested,  duly  certified,  to  the  end 
that,  as  to  the  lands  without  this  State,  it  may  be  carried 
into  effect  in  the  State  in  which  the  said  lands  may  be,  in  such 
manner  as  said  State  may  direct :  And  on  satisfactory  evidence 
being  made  to  the  court  in  this  State,  that  the  decree  may 
have  full  effect  by  the  law  of  such  other  State,  the  com-t  in 
this  State  shall  by  its  decree  declare  the  partition  in  the  land 
in  this  State  to  be  final  and  conclusive ;  and  the  decree  shall 
be  firm  and  irreversible,  as  hereinafter  provided ;  and  shall  on 
registration  as  aforesaid  pass  to  the  tenants  the  title  in  sever- 
alty to  the  lands  in  this  State,  in  the  same  manner  as  if  all 
the  lands  mentioned  in  the  decree,  were  situate  within  this 
State. 

13.    Where  real  estate   may  be   partly  in   this    State   and  Decree  for 
partly  in  another  State,  and  the  deceased  person  from  whom  PnotheTstate, 
it  was  derived   by  descent  or  devise,  was   at  the  time  of  his  when  enforced 
death  a  resident  in  some  other  State,  or  was  a  resident  of  none  j,"  ^'"g"!?'  ^' 


456  PARTITION.  [Chap.  82. 

of  the  States  in  which  he  held  lands,  and  in  this  last  case,  the 
lands  of  which  he  was  seized  in  this  State  were  of  less  value 
than  the  lands  of  which  he  was  seized  in  any  other  State,  the 
courts  of  record  of  the  State  in  which  such  deceased  person 
had  his  residence  at  his  death,  or  in  which  he  held  lands  of 
greater  value  than  those  he  held  in  this  State,  shall  have  full 
power  and  authority,  under  any  law  passed  by  the  legislature  of 
such  State  substantially  in  accordance  with  the  provision  here- 
in made  on  this  subject,  to  decree  partition  of  tiie  lands  in  this 
State  together  with  those  within  such  other  State,  in  the  same 
manner  as  if  the  whole  real  estate  were  within  the  jurisdiction  of 
such  court,  and  in  tiie  same  manner  as  the  courts  in  this  State 
are  directed  and  authorized  to  do  by  tiie  preceding  section,  as 
to  the  lands  of  deceased  persons  resident  here  at  their  death, 
or  having  lands  of  greater  value  here  than  in  any  other  State ; 
and  in  case  any  person,  having  an  interest  in  the  final  decree 
made  as  aforesaid  in  another  State,  as  to  lands  in  this  State, 
shall,  within  twelve  months  after  the  same  may  be  entered  up 
in  the  courts  in  said  State,  produce  the  record  and  proceedings 
of  such  courts  of  record  duly  certified,  to  a  court  of  equity  of 
any  county  in  this  State,  where  any  of  the  lands  in  this  State 
lie,  the  court,  on  petition  ex  parte  in  such  case,  shall  order  such 
proceedings  to  be  entered  of  record  in  the  coiirt  of  this  State, 
and  order  that  the  said  decree  shall  be  of  the  same  force  and 
validity,  as  if  it  had  been  a  decree  of  the  court  in  this  State 
in  which  the  petition  is  filed,  upon  an  original  bill  and  regular 
proceedings  had  thereon ;  and  the  decree  of  the  court  of  such 
other  State,  and  the  proceedings  on  it  by  petition  in  the 
court  of  equity  in  this  State  confirming  and  giving  it  va- 
lidity, being  enrolled  in  the  said  court  of  this  State  and  reg- 
istered in  all  the  counties  where  the  lands  lie  in  this  State, 
shall  pass  the  lands  in  this  State  according  to  the  decree,  and 
shall  vest  estates  in  severalty  therein  declared,  as  to  said  lands, 
in  the  same  manner  and  with  the  same  effect  in  law,  as  if  the 
lands  in  this  State  had  been  so  allotted  on  a  petition  for  par- 
tition, according  to  the  provisions  of  the  former  sections  of  thia 
chapter. 
Court  to  judge  14.  Where  a  copy  of  a  decree  and  proceedings  of  a  suit  in 
er^'staTe  has  ^"y  other  State  shall  be  produced,  as  in  the  preceding  sec- 
passodaiawin  tion  ;  and  also  when  it  is  necessary  for  a  court  of  equity  to  be 
thul^^Ri's-'c.  cei'tifietl,  that  its  decree  of  partition  of  lands,  without  this 
85,  s.  10.  State    and  within  the~  territory  of  another    State,   can    have 

effect  therein,  it  shall  be  competent  for  the  court  of  equity, 
before  which  the  existence  of  a  law  in  such  other  State  is  to 
be   proved,  to  judge  whether  any  act  of  the  Legislature  of 
such  State  has  been  passed. 
Time  allowed        15.    On  an  Original  bill  or  petition  under  this  chapter,  as 

to  fevie  coverts,  •      i.    r  i       •    r      l  .-i 

iniants,  &c.—  against  Jcme  coverts,  infants,  persons  noii  compos  mentis,  and 
K.  S.  c.  S5,  s.  against  all  parties,  against  wiiom  judgment  shall  be  taken  pro 
^''  confesso  on  publication,  the  final  decree  shall  be  binding,  in 


Chap.  82.]  partition,  457 

like  manner,  on  the  same  terms  and  to  the  same  extent,  and 
with  the  like  saving  for  persons  under  disabilities,  as  are  pro- 
vided under  the  rules  regulating  decrees  in  equity  in  the 
chapter  entitled  "  Courts  of  Equity." 

16.  The  commissioners,  appointed  to  divide  lands  lying  in  Payofoom- 
this  and  another  State,  shall  be  entitled  to  three  dollars  per  missioners.— 
day  for  their  services.  h.  ' "'  *^'  '■ 

17.  When    any   persons    entitled    as   tenants   in    common  Personal  prop- 
to   any  slaves  or  other  chattel  property,   shall  be  desirous  to  ^'l^'  partition 
have    a    division  of  the  same,   they  may    file    a   petition   in  r.  S-'^c.^ssfs." 
the   county  or   superior   court,   or   court    of  equity,  for   that  ^^• 
purpose;  and  if  a  division  can  be  had  without  a  sale  of  said 

slaves  or  other  chattel  property,  the  court  may  appoint  three 
freeholders,  unconnected  with  the  parties  by  blood  or  affinity, 
who,  first  being  duly  sworn,  shall  divide  such  property  as 
nearly  equal  as  possible,  and  allot  to  each  tenant  in  common 
his  share  in  severalty,  and  make  report  to  court  as  directed ; 
and  if  such  report  be  confirmed,  a  decree  shall  be  entered 
accordingly  and  vest  in  each  tenant  in  common  his  share  in 
severalty. 

18.  If  a  division  of  slaves,  or  other  chattel  property,  cannot  When  sold  for 
be  had  without  injury  to  some  of  the  parties  interested,  and  a  ^"''s''o°°85"s 
sale  thereof  may  be  deemed  necessary,  the  court  shall  order  19.  '  °'    '  ^" 
sale  of  the  same  to  be  made  by  the  clerk  or  some  other  fit  per- 
son, who   shall  sell  the   said  slaves  or  chattel  property,  after 

twenty  days'  notice,  in  three  or  more  public  places  in  the 
county,  by  advertisement ;  and  the  deed  of  the  clerk  or  person 
appointed,  when  directed  to  be  made,  shall  convey  to  the  pur- 
chaser such  title,  interest,  and  estate  therein,  as  the  tenants  in 
common  had  ;  and  the  clerk,  or  person  appointed  as  aforesaid, 
shall  report  to  the  court  all  his  proceedings  in  the  case ;  and 
the  court  shall  secure  to  each  tenant  in  common  his  ratable 
share  in  severalty  of  the  proceeds  of  sale. 

19.  Whenever  a  petition  is  filed  under  the  two  last  sections,  Infants  &c.,  to 
and  either  party  may  be  an  infant,  or  person  non  compos  l!!^'^ s^"c""s5'*"' 
vientis,  without  guardian,  the  court  shall  appoint  a  guardian  20.  '  '  °" ''"''  **' 
for  such  party. 

20.  The  freeholders  appointed  to  make  division,  or  the  per-  Pay  of  00m- 
son  appointed  to   make  a  sale,  of  property  held  in  common,  pi^'fioi;*"-!,  af- 

1111  •  j\    r        j.\     '  •  ,1         .-,,  1112;  in  tlio  btate. 

shall   be  paid  for  their  services  a  sum  to  be  judged   by  the  -K.  s.  c.  So, 
court  and  taxed  in  the  bill  of  costs,  all  of  which  shall  be  paid"'^^' 
by  the  parties  in  such  manner  as  the  court  may  decree. 


^  Sect.  1.  Partition  a  right,  8  Ire.  462,  7  Ire.  Eq.  94,  2  lb.  607.  Land  left  to  be  divided 
in  a parttmdnr  nmj,  8  Ire.  Eq.  S4.  When  title. disputed,  4  Dev.  223,  5  Ire.  Eq.  Ill,  10  Ire. 
•361.     Partnership  property,  Hoiwa,  120. 

,  ^"^P'n^-  ^l**"*""^"'  «  '"'".  5  Ire.  Eq-  425,  1  Dev.  Eq.  23.  Pleading  and  practice, 
1  I).  &  B.  257,  2  Dev.  629,  1  Dev.  Eq.  47,  3  Hawlis,  41.  Judgment  conclusive,  8  Ire.  Eq. 
242,  2  D.  &  B.  433. 

Sect.  6.  Sale,  2  Jones,  Eq.  66,  6  Ire.  Eq.  183,  see  note  to  section  1.  3  Mur.  207. 
khare  of  feme  covert,  1  Dev.  Eq.  118  ;  of  infant.  Bus.  Eq.  91,  4  Hawks,  215.  Dower, 
6  Ire.  Eq.  393. 

Sect.  17.  Pleading  and  practice,  6  Ire.  219,  7  Ire.  Eq.  4,  8  lb.  25  :  when  cotenancy 
dented,  10  Ire.  301,  5  Ire.  Eq.  111.  >  i      .  s 

39 


458 


PATROL. 


[Chap.  83. 


CHAPTER  83. 


PATROL. 


Section 

1.  County  courts  may    appoint    patrol 

committee,  wlio  shall  employ  a  pa- 
trol.   Jlay  also  appoint  a  patrol. 

2.  Committee  refusing  to  act,  penalty. 

3.  Duties  and  powers  of  patrol. 

4.  Kules  for,  prescribed  by  court. 


Section 

5.  Cummittce  may  discharge  patroUers 

and  appoint  others. 

6.  Patrol  appointed  by  committee  refus- 

ing to  act  ;  penalty. 

7.  By  court,  refusing  to  act ;  penalty. 

8.  Pay  of  patrol.    Tax  therefor. 


Duties  and 
powers  of  pa^ 
trol.— R.   S. 


Co.  courts  may  1.  The  county  court  of  each  county,  if  the  court  deem  it 
committee,who  necessary,  shall,  at  the  first  court  that  may  be  held  after  the 
shall  employ  a  first  of  January,  in  every  year,  or  any  subsequent  court,  ap- 
^^  ™  ■  point  a  patrol  committee  of  three  persons,  in  each  captain's 

district  in   said  county,   who   shall  employ  a  patrol  of  such 
number  of  persons  as  they  may  think  necessary  to  patrol  their 
pomtap^atroi.   district.     Provided,  that  nothing    herein    contained    shall    be 
— R.  S.  c.  86,  construed  to  prevent  the  county  courts  from  appointing  such 

patrol  as  they  may  deem  proper. 

^f™™'i^'r  ^'    ■'^"y  person,  appointed  one  of  the  patrol  committee,  who 

penalty"— R.  s!  shall  neglect  to  discharge   his  duties,  shall  pay  a  penalty  of 

c.  86,  s.  2.        twenty -five  dollars,  to  be  recovered  on  motion  to  the  court  by 

the  county  solicitor  and  paid  to  the  county  trustee,  in  aid  of 

the  tax  in  support  of  the  patrol. 

3.    The  patrol  shall  visit  the  negro  houses  in  their  respective 
c.  districts,  as  often  as  may  be  necessary,  and  may  inflict  a  pun- 
c^Vl'  ^■~"''^*^'  ishment,  not  exceeding  fifteen  lashes,  on  all  slaves  they  may 
find  oft'  their  owner's  plantations,  without  a  proper  permit  or 
pass,  designating  the  place  or  places,  to  which  the  slaves  have 
leave  to  go.     The  patrol  shall  also  visit  all  suspected  places, 
and  suppress  all  unlawful  collections  of  slaves  ;  shall  be  dili- 
gent in  apprehending  all  runaway  negroes  in  their  respective 
districts ;  shall  be  vigilant  and  endeavor  to  detect  all  thefts, 
and   bring   the    perpetrators  to  justice,   and  also  all  persons 
guilty  of  trading  with  slaves.     The  patrol  thus  employed,  or 
appointed  by  the  county  court,  or  any  two  of  them,  shall  have 
such  powers  as  may  be  necessary  to  a  proper  discharge  of  the 
duties  herein  enjoined;  and  if,  upon  taking  up  a  slave  and 
chastising  him,  as  herein  directed,  he  shall  beliave  insolently, 
they  may  inflict  further  punishment  for  his  misconduct,  not 
exceeding  thirty-nine  lashes. 
Rules  for,  pre-      4.    The  county  courts  shall,  prescribe  all  necessary  rules  for 
court— kT S.  c.  ^^®  government  of  the  patrol  of  the  respective  counties,  and 
80,  s.  4.  the  patrol  shall  be  subject  thereto,  under  such  fines  and  pen- 

alties as  the  court  shall  fix  and  direct. 

5.    The  patrol  committee  shall  have  full  power  to  discharge 
)ne  or  more  of  the  ))airol,  and 
when  they  may  think  it  expedient. 


Com.  may  dis- 
charge, &c. — 
E.S.  0.86,6.6. 


Chap.  84.]  pensions.  459 

6.  Any  person,  appointed   by  the   committee  one   of  the  Patrol  of  com. 
patrol,  who  shall  neglect  to  serve,  shall  be  subject  to  a  penalty  i-efusins^  act, 
of  twenty  dollars,  to  be  sued  for  by  the  patrol  committee  of  He,  s^'e. 
his  particular  district,  and  paid  by  them  to  the  county  trustee, 

in  aid  of  the  tax  for  the  support  of  the  patrol. 

7.  Any  person  appointed  one  of  the  patrol   by  the  court,  Appointed  by 
who  shall  neglect  to  serve,  shall  forfeit  and  pay  twenty  dollars!  f°^|;',';  "^",^.,,t"- 

8.  The   patrol  shall  receive    such    compensation    for    their -R.'t.^c.'te,'*'' 
services  as  may  be  allowed  them  by  the  county  court;  andj;/;„f    t„, 
the  court,  a  majority  of  the  justices  being  present,  may  lay  a  Tak therefor.- 
tax  not  exceeding  twenty-five  cents  on  each  taxable  slave,  to  r|  c^^sV' 
defray  the  expenses  of  the  patrol.  20.  '  '  "■  '  ' 


Sect.  3.  Liabhfor  malice,  1  Hawks,  418. 
Sect.  6.  Minisiers  not  exempt,  Bus.  S9. 


CHAPTER    84. 

PENSIONS. 

Pensions  allowed  persons  disabled  in  militia  service,  and  their  widows  and  orphans. 
Mode  of  procuring  the  same. 

Every  person  who  may  have  been  disabled  by  wounds  in  Pensions  al- 
the  militia  service  of  the  State,  or  rendered  incapable  thereby  J{J'™3'|e^"'°°' 
of    procuring   subsistence    for    himself  and    family,    and   the  mimia service 
widows  and  orphans  of  such  persons  who  may  have  died,  may  ""'jo^.g'!^^^ 
apply  to  the  court  of  the  county  in  which  such  person,  widow,  oVpCns.'™ 
or  orphan  shall  reside,  and  the  court  shall  certify  to  the  Gen- 
eral Assembly  their  distresses;    and  thereupon,   such  person  Mode  of  pro- 
shall  have  an  allowance  by  the  General  Assembly  sufficient  "'g'i'S^-/';,'^^ 
for  one  year's  relief:  and  the   allowance  shall  be  continued  1838,' c! 25.- 
from  year  to  year,  so  long  as  the  court  shall  certify  that  such 
person,  widow,  or  orphan    continues    under    the    description 
aforesaid:    which    certificate   of  court,   countersigned  by  the 
speakers  of  the  General  Assembly,  during  the  year  of  its  meet- 
ing, and  in  every  other  year,  by  the  governor,  shall  be  a  suffi- 
cient voucher  in  settling  his   public  accounts,  to  any  sheriff", 
collector,  or  treasurer,  who  may  pay  the  same. 


460 


PILOTS. 


[CiLVP.  85. 


CHAPTER    85. 


PILOTS. 


Commissioners  of  Navigation  for  Cape 
Fear  river  yearly  elected  by  citizens 
of  Wilmington. 

How  styled.  To  fill  vacancies,  and 
appoint  a  clerk.  To  establish,  &c. 
fees  of  pilots.  To  have  authority 
concerning  navigation  of  the  river, 
&c. 

Harbor  master  appointed. 

Pilot  stations  and  pilotage,  &c.  regu- 
lated by  commissioners. 

Pilots  appointed  by  board. 

Bond  given  by  pilots. 

Disputes  between  masters  and  pilots, 
decided  by  board.  Warrant  for  pilot- 
age, forfeiture,  &c.,  may  be  issued  by 
one  of  the  commissioners.  Jurisdic- 
tion not  to  exceed  sixty  dollars. 
May  summon  witnesses,  and  admin- 
ister oaths. 

Stay  of  execution  not  allowed.  Ap- 
peals allowed. 

Notice  given  when  rates  of  pilotage 
altered. 

Number  of  boats  to  be  prescribed  for 
pilots. 

Bights  of  pilots  as  to  Main  and  New 
Inlet  bars  of  Cape  Fear. 

Apprentices  to  be  kept  by  pilots. 

Penalty  on  pilots  not  attending  when 
requested.     Proviso. 

Pilots  refused,  entitled  to  full  pay. 

One  third  fees  only,  due  to  pilots  in 
certain  cases. 

Pilotage,  when  vessel  deepened  or 
lightened. 

Vessels,  of  what  burden,  and  where, 
exempt  from  pilotage. 

Of  sixty  tons,  coming  into  Cape  Fear 
river  for  eoal  exempt,  if  they  hoist  a 
prescribed  flag.  Outward  bound 
coal  vessels  also.  Penalty  on  cap- 
tains, &c.  falsely  hoisting  flag  of  coal 
vessels. 

Penalty  on  coal  vessels  not  raising 
flag. 

Pilotage  of,  not  to  be  altered,  &c. 

Commissioners  of  navigation  for  New- 
bern,  Washington,  and  Kdenton, 
yearly  appointed.  Mode  of  appoint- 
ing.   Vacancies,  how  filled. 


Section 

22.  Power  of  commissioners. 

23.  Commissioners  of  Washington,  a  body 

corporate.  Their  stj-le  and  powers. 
May  provide  for  receiving  persons  in 
quarantine.     Employ  physician,  &c. 

24.  Board  of  commissioners  for  Ocracock 

to  be  continued;  to  meet  three  times 
a  5'ear  at  Ocracock.  To  appoint  pi- 
lots fur  the  bar,  swashes,  &c.  To 
keep  oflice  at  Ocracock.  Fees  paid 
for  branches,  how  disposed  of.  Va- 
cancies, how  filled.  Commissioners 
to  keep  a  journal,  and  take  oath. 
Branches  to  expire  in  three  years. 

25.  Commissioners  of  navigation  for  Car- 

teret, Onslow,  and  Hyde.  Those  of 
Carteret,  a  board  for  Old  Topsail  in- 
let, &c.  Of  Onslow,  a  board  for 
Bogue  inlet,  &c.  Of  Hyde,  a  board 
for  Hatteras  Inlet,  &c.  Vacancies, 
how  filled.    Powers  of  boards. 

26.  Bonds  given  by  pilots. 

27.  To  have  a  telescope  or  spy-glass. 

28.  May  be  removed  for  misconduct.  Sec. 

Penalty  for  acting  after  removal. 
Notice  of  removal  published. 

29.  Penalty  for  acting  without  license. 

30.  Pay  to  pilots  for  detention.    Pay  when 

driven  off  coast,  after  boarding. 

31.  Penalty  for  neglecting  to  go  to  a  vessel 

with  a  signal,  &c. 

32.  Pilots,  when  refused,  to  have  pay. 

33.  No  pilotage  on  ships  under  60  tons. 

Exception. 

34.  Kates  of  pilotage  for  Edonton,  Wash- 

ington, Newberu,  Ocracock,  and 
Hatteras  pilots. 

35.  Harbor  masters  and  clerks  appointed 

by  boards. 

36.  Rates  of  pilotage  at  Old  Topsail. 
87.  Bogue  inlet. 

38.  Fees  of  pilots  annexed  to  branches. 

39.  Penalty,  when  a  slave  acts  as  pilot. 

40.  Boards    to   designate  where    ballast, 

trash,  &c.,  may  be  cast.  Penalty  for 
throwing  ballast,  stone,  &c.,  into 
navigable  water,  or  pulling  down 
beacons,  &c. 

41.  On  pilots  not  informing  thereof. 

42.  Penalties  and  fines,  how  disposed  of. 

Annual  report  uiade  thereof. 


Chap.  85.]  pilots.  461 

1.    Thfre  shall   be  elected  annually  on  the  first  Monday  of  Comm'rsof 
May,  five  commissioners  of  navigation  and  pilotage  for  Cape  c7'lFe°rriTei- 
Fear  river,  who  shall  be  citizens  of  the  town  of  Wilmington.  ye:frV  elected' 
The  election  shall  be  held  at  the  com-t  house  of  the  county,  ^J^iil^iiil'^^';, 'I 
shall  be  conducted  by  the  sheriff  of  New  Hanover  in  the  same  R.  s.cl^sS,"^. 
manner  as  political  elections,  and  shall  be  made  by  the  citi- j.' 7^  ^'^^^ '';.■'"' 
zens  of  the  town  who  are  resident  therein  and  are  qualified  to  ^r'^i  i.    ' "' 
vote  for  members  of  the  house  of  commons. 

_  2.    The  commissioners  shall  be  styled  the  board  of  commis-  How  styled. 
sioners   of  navigation  and  pilotage  for  the   Cape    Fear  river, 
and  a  majority  of  them  may  act  in  all  cases.     Said  board  shall  To  6ii  vacnn- 
have  power  to  fill  vacancies  as  they  occur  in  the  board,  during  °ointTcieI-k 
their  term  ;  to  appoint  a  clerk  to  record  in  a  book  the  rules,  ^'°'"  '""^''^" 
orders,  and  proceedings  of  the  board  ;  to  establish,  from  time  To  establish, 
to  time,  all  such  rules,  regulations,  and  orders  for  the  port  as  fef ''"  "*' 
they  may  deem  necessary  and  efficient  for  the  detection,  appre- 
hension, or  return  of  slaves,  escaping  or  attempting  to  escape 
from  the   port  in  vessels;  and  to  establish,  and  as  often  as 
need  may  be,  to  alter  and  regulate  the  fees  and  charges  of  the 
pilots   or  harbor  masters  of  the   port  for  services  required   of 
them  by  virtue  of  such  rules,  regulations,  and  orders.     More-  To  have  au- 
over,  they  shall  have  authority  in  all  matters  that  may  concern  cerni'J-mvi- 
the  navigation  of  the  waters  from  seven  miles  above  Negi-o-  gation°of  the 
head  point  downwards  and  out  of  the  bar  and  inlets  ;  and  with  r's'c^IT. 
respect  to  throwing  trash  in  the  river  at  the  town  of  Wilming-  2.'— isis, c. «, 
ton,  and  the  construction  of  wharves,  shall  have  a  concurrent^'  ^" 
jurisdiction  with  the  commissioners  of  the  town  ;  and  the  com- 
missioners  of  pilotage,   and  the  commissioners   of  the  town, 
shall_  consult  together,  upon  the  best  methods  of  preventing 
any  injury  to  the  channel,  by  wharves  or  otherwise  in  the  town, 
and  when  there  is  no  harbor  master,  the  commissioners  of  nav- 
igation and  pilotage  shall  decide  all  disputes  about  the  mov- 
ing of  vessels   and  other  matters,  which  properly  fall  within 
the  department  of  harbor  master. 

3.  The  said  commissioners  immediately  on  their  election.  Harbor  master 
shall  appoint  a  harbor  master  for  the  port  of  Wilmington,  who  s'' o"ssi'7 '^^ 
shall  hold  his  office  for  one  year  next  ensuing ;  and  they  shall     °'     '^ 
prescribe  the  duties  of  his  oHice.     He  shall  be  entitled  "to  re- 
ceive from  the  master  of  each  vessel,  that  shall  enter  said  port, 

one  dollar,  and  such  fees  for  other  services  as  the  commission- 
ers may  prescribe. 

4.  The  commissioners  shall,  from  time  to  time,  make  and  Pilot  stations 
establish  such  rules  and  regulations,  respecting  the  arrange-  "^"J*  ','e°ui.ff<;d 
ment  and  station  of  pilots,  and  the  rates  of  pilotage,  as  to  them  bv  comm''rs°- 
shaU  seem  most  advisable,  and  shall  impose  reasonable  fines,  ^- '^■''•'*^'^- '^• 
forfeitures,  and  penalties,  for  the  purpose  of  enforcino-  the  ex- 
ecution of  such  rules  and  regulationsr. 

5.  The  board,  or  a  majority  of  them,  shall,  from  time  to  ^'lo*'  appoint- 
time,  examine,  or  cause  to  be  examined,  such  persons  as  may  r^  s^o'^Ts'tl 
offer  themselves  to  be  pilots  for  Cape  Fear  river  and  bars,  and 

shall  give  to  such   as  are  approved,  commissions,  under  their 
39* 


462  PILOTS.  [Chap.  85. 

hands  and  seals,  to  act  as  pilots  both  for  the  bars  and  rivers, 
according  as  they  shall  be  found  qualified. 
Bond  given  by       6.    Every  person,  before  he  obtains  a  commission  or  a  branch 
P''gg-~g|''  ^'   to  be  a  pilot,  shall  give  bond  with  two  sufficient  sureties  pay- 
able to  the  State  of  North  Carolina,  in  the  sum  of  five  hun- 
dred dollars,  with  condition  for  the  due  and  faithful  discharge 
of  his  duties,  and  the  duties  of  his  apprentices ;  and  the  board 
may,  from  time  to  time,  and  as  often  as  they  may  deem  it 
necessary,  enlarge  the  penalty  of  the  bond,  or  require  new  and 
additional  bonds  to  be  given  ;  and  every  bond  taken  of  a  pilot 
shall  be  filed  with,  and  preserved  by,  the  said  board  of  com- 
missioners in  trust  for  every  person  that  shall  be  injured  by 
the   neglect  or^ misconduct  of  such  pilot,  or  his  apprentices; 
who  may  severally  bring  suit  thereon  for  the  damage  by  each 
one  sustained. 
Disputes  be-        7.    The  board  shall  have  power  and  authority  to  hear  and 
anrpilots,*de'^-^  determine  aU  matters  of  dispute  between  any  pilot  and  mas- 
cidedbyb'oard.  ter  of  a  vessel,  or  between  the  pilots  themselves,  respecting 
kt^e^'forfeir-'  the   pilotage   of  vessels  ;  and    any  one   of  them  may  issue  a 
nre,  &c.,  issued  warrant  against  any   master  of  a  vessel,  for  the  recovery  of 
by  a  coram'!-.    ^^^  pilotage,  and  against  any  pilot  for  the  recovery  of  any  de- 
mand which  one  pilot  may  have  against  another  relative  to  pi- 
lotage, and  for  the  recovery  of  any  forfeiture  or  penalty,  incurred 
by  any  act  of  the  General  Assembly  for  regulating  the  pilot- 
age of  Cape  Fear  river  and  bars,  or  incurred  by  any  by-law 
or  rule  passed  in  virtue  thereof;  which  warrant  the  sheriff  or 
any  constable  of  New  Hanover  county  shall  execute,  together 
with  all  other  process  authorized  by  this  chapter.    And  on  any 
warrant,  issued  as   aforesaid,  any  one  of  said  commissioners 
.Jurisdiction not  mav  give  judgment  for  any  sum,  not  exceeding  sixty  dollars, 

to  exceed  $60.  J   &         J       &  ,•  xi  •       xi  r  •         • 

Mtiy  summon    ind  may  issue  execution  thereon,  in   the   manner  ot  issuing 
witnesses,  und  execution  on  judgments  given  by  justices  of  the  peace  ;  which 
oath™— K.  S.    inay  be  executed  agreeable  to  the  rules  and  regulations  pre- 
c.  88,8. 9.         scribed    for  the    levy  and    sale    under  executions    issuing   on 
judgments  rendered  by  justices  of  the  peace  ;  and  such  com- 
missioner shall  issue  summons  for  witnesses,  and  administer 
oaths  as  is  done  in  cases  of  trials  before  justices  of  the  peace. 
Stay  of  execn-      8.    There  shall  be  no   stay   of  execution  on  any  judgment 
^"""nit'^ai?"     obtained  by  pilots  against  masters  of  vessels,  or  by  masters  of 
lowed.  vessels  against  pilots,  or  by  pilots  against  pilots,  on  account 

of  any  compensation  or  detention,  or  for  any  forfeiture  or 
penalty  payable  to  any  pilot  or  master  of  a  vessel,  by  a  pilot 
or  master  of  a  vessel,  in  virtue  of  any  act  of  the  General  As- 
Appealsal-  scmbly,  or  by-law  made  in  pursuance  thereof:  but  appeals 
c'^ss'^'s"!?'  ^'  ^^^^^  ^'^'  allowed  in  such  eases  under  the  rules  which  regulate 
appeals  from  the  judgments  of  justices  of  the  peace.  Provided, 
however,  that,  if  on  the  appeal  of  any  defendant,  the  recovery 
shall  not  be  lessened,  and  it  siiull  be  the  opinion  of  the  court 
that  the  appeal  was  obtained  for  the  purpose  of  delay,  the 
court  shall  adjudge  the  defendant  to  pay  twenty  per  cent,  on 
the  amount  of  the  original  judgment,  which  shall  be  added 
thereto,  and  execution  shall  issue  for  the  whole  amount. 


Chap.  85.]  pilots.  463 

9.  When  the  commissioners  aforesaid  shall  alter  the  rates  Notice  given 
of  pilotage,  they  shall  cause  the  new  rates  to  be  set  up  in  the  puot"™ 'ai- "'^ 
office  of  the  collector  of  the  port;  and  shall  also  cause  them  tcred.  —  R.  S. 
to  be  annexed  to  the  several  pilots'  branches,  certified  under  '''  ^^'  ^"  ^^" 
their  hands. 

10.  The  commissioners  aforesaid  shall  determine  and  make  Number  of 
known,  as  far  as  occasion  may  require,  to  the  pilots,  how  many  s'°Hi,''eS'^^j"r 
decked  boats  are  necessary  for  the  attendance  on  the  bars  re-  pilots.  — r.  s. 
spectively  ;  in  which  decked  boats  any  number  of  said  pilots, "'  ^*'  ^'  ^'^' 
not  exceeding  five,  may  act  and  be  concerned  as  partners  and 

joint  owners. 

11.  The  pilots  having  branches  to  pilot  over  the  main  bar,  Rights  of  pilots 

~'         ~    "       "  '    "  as  to  main  and 


or  New  Inlet  bar,  of  Cape  Fear  river,  shall  be  entitled  to  pilot  xew  inlet  „„, 
and  navigate  vessels  into  port  over  either  bar ;  and  the  pilot,  of  Cape  Fear.' 


bars 


—  R.  S.  0. 
s.  13. 


who  shall  bring  a  vessel  into  port  over  either  bar,  shall  be  en 
titled,  exclusively,  to  navigate  the  same  vessel  out  of  port  over 
either  bar.  Prouided  always,  when  any  vessel  shall  be  ready 
to  go  out  of  port,  and  such  pilot  does  not  attend  to  navigate 
the  same,  the  captain  or  master  may  employ  any  other  pilot 
for  that  purpose,  such  other  pilot  being  a  branch  or  commis- 
sioned pilot  for  the  bar  over  which  the  vessel  is  to  be  navi- 
gated out ;  and  every  pilot,  who  shall  navigate  a  vessel  out  of 
port  contrary  to  the  meaning  of  this  section,  shall  for  every 
such  offence,  forfeit  and  pay  forty  dollars  to  the  pilot  or  pilots, 
who,  by  this  chapter,  would  have  been  entitled  to  navigate 
said  vessel  out  of  port. 

12.  Every  pilot,  commissioned  as  aforesaid,  shall  keep  at  Apprentices  to 
least    one,  but  not  more  than  two  apprentices,  and  instruct  fote''!I!R''-s ''c" 
them  in  the  art  and  mystery  of  a  pilot ;  which  said  appren-  ss,  s.  li. 
tices,  upon  being  authorized  by  the  board,  may  pilot  any  ves- 
sel, which  their  several  masters  are  entitled  to   pilot,  for  the 

behoof  and  emolument  of  their  masters,  without  let  or  moles- 
tation, subject  however  to  the  same  regulations  as  the  pilots 
are. 

13.  When  any  pilot  shall  have  notice  from  the  master  of  Penalty  on  pi- 
any  vessel  to  attend  in   piloting  such  vessel,  and  shall  not,  }°'„''(,"°'^\e„ 
without  delay,  go  on  board  for  that  purpose,  he  shall  forfeit  requested. 
and  pay  to  the  master  ten  dollars,  (unless  he  shall,  at  the  time 

of  such  notice,  have  the  actual  and  personal  charge  of  some 
other  vessel,)  for  each  day's  delay,  caused  by  his  neglect,  of 
the  vessel  which  he  had  notice  to  attend,  and  the  further  sum 
of  one  day's  expense  of  such  vessel,  to  be  recovered  by  a  war- 
rant under  the  hand  of  any  one  of  the  commissioners,  on  oath 
being  made  of  the  fact,  (which  oath  any  of  the  commissioners 
may  adiTiinister).  Provided,  that  no  pilot  shall  be  considered  Proviso.  — r. 
as  obliged  to  take  charge  of  any  vessel  outward  bound,  in  or-  ^' '"'  ^*'  ^'  ^^' 
der  to  pilot  her  over  either  of  the  bars,  until  the  pilotage  be  pre- 
viously paid  him,  or  satisfactory  security  for  the  payment 
thereof  be  given  him. 

14.  When  any  master  of  a  vessel,  not  having  a  pilot  on  Pilots,  refused, 
board,  coming  over  the  bar  into  the  Cape  Fear  river;  or  being  pHot'.'fgo.'!.!"'^ 

ti.  c.  fs,  s.  li. 


464  riLOTS.  [Chap.  85. 

in  the  river  and  going  out  of  either  of  the  inlets,  shall  refuse 
a  pilot  across  the  bar,  then  each   pilot  so  refused,  shall  be  en- 
titled to  the   same  pilotage,  as  if  he  had  been  actually  em- 
ployed to  pilot,  and  had  piloted  such  vessel. 
One  third  fees       15.    When  any  vessel  shall  come  over  the  bar  before  a  pilot 
kt/in  certain'" '^o'l^'ds  hcr,  she  shall  pay   only  one  third  fees  for  coming  in, 
cMscs.  — K.  s.    unless  when  it  may  happen  the  weather  is  so  bad  that  no  per- 
'  ^'     ■       son  can  board  a  vessel ;  in  which  case,  if  he  shall  hail  her  with- 
out the  bar,  he  shall  be  entitled  to  full  fees. 
Piiota;:'',  when      16.    If  any  vessel  deepens  or  lightens  between  Wilmington 
enecT or  right-    ^'^d  the  flats,  between   the  flats  and  Brunswick,  or  between 
cneJ.  — E.  s.    Brunswick  and  Fort  Johnson,  the  pilot  shall  be  paid  for  the 
'  ^'     ■       greatest  draught  of  water,  and  shall  besides  be  entitled  to  de- 
mand, at  the  rate  of  two  dollars  per  day,  for  every  day  or  part 
of  a  day,  he  may  be  delayed  in  loading  or  unloading  such 
vessel. 
Vessels,  of  17.    No  master  of  a  vessel  shall  be  required  to  take  or  keep 

and  where,  ex-  3-  pilot  ou  board,  or  pay  for  pilotage  in  the  river,  inside  of  the 
emptfrompi-    bar,  in  going  either  up  or  down  the  river;  nor  shall  any  vessel 
c"  68,''cT22— '    under  sixty  tons  burden  be  compelled  to  take  a  pilot    while 
1840,  c.  48.       crossing  the  bar,  or  pay  pilotage,  except  where  signals  are  made 
for  a  pilot ;  and  no  vessel  coming  in  at  either  of  the  said  inlets, 
with  a  view  to  the  more  convenient  prosecution  of  her  voyage, 
or  to  make  a  harbor,  shall  be  subject  to  the  payment  of  pilot- 
age. 
Of  sixty  tons,        18.    All   vessels   of  sixty  tons  burden   or    upwards,  bound 
FTiTOr  for"    'from  sea  to   Cape  Fear  river,  with  the  intention  of  taking  a 
coal,  exempt,  if  return  cargo  of  coal,  which  has  been  mined  in  the   State,  and 
I)rescrib"edflag.  actually  taking    such  cargo,    shall  be  exempt   from  pilotage. 
Provided,  that  such  vessel,  when  coming  in  sight  of  New  In- 
let or  Main   bar,  shall  hoist  at  her  topmast  head,  or  such  other 
place  as   shall  be  designated  by  the  board  of  commissioners 
aforesaid,  and  keep  the  same  flying  till  said  vessel  shall  have 
crossed  the  bar  oi  inlet,  a  flag  one   yard  square,   of  a  white 
ground,  with  a  black  ball  in  the  centre  of  not  less  than  a  foot 
in  diameter.     And  all  vessels  in  the  river  of  like    burden,  out- 
bouiufcoal  ves- '^^^''d  bound  and  laden  with  coal,  shall  also  be  exempt  from 
scis,  also.         pilotage.     Provided,  they  hoist  said  flag  as  soon  as  they  come 
in  sight  of,  and  keep  it  flying  till  they  pass  New  Inlet  or  Main 
bar.     Provided,  liowever,  that  no  vessel   of  sixty  tons  burden 
or  upwards,  having  on  board  any  merchandise  or  freight,  ex- 
cept coal,  shall  be  entitled  to  exemption  from  pilotage.    And 
Penalty  on  cap- /"'o^^^^^'^O'"''''^'''  ^''^^  if  any  vcsscl  of  the  burden  last  men- 
tains,  &c..        tioned,  coming  into  the  Cape  Fear  river  through  New  Inlet  or 
fiaK'^ofcoaWel?  Main  bar,  or  going  out  of  the  river  to  sea,  shall  hoist  said  flag 
seis.— iS5o,c.    under   false  pretences,  to  avoid  paying  pilotage,  the   master, 
116,  s.  1,  3.       captain,  and  owner  thereof  shall  pay  double  pilotage  to  some 

one  of  the  pilots,  for  the  equal  benefit  of  them  all. 
'^'^sT'k'f"" '^T'      19.    All  vessels   of  such  burden  engaged  in  the  transporta- 
raisingfiag.—    tion  of  coal,  OU  the  coast  of  North   Carolina,  whenever  they 
iS50,c.ii6,s.5.  appe-^^r  within  sight  of  any  pilot  station,  shall  raise  said  flag, 


Chap.  85.]  pilots.  465 

to  the  end  that  pilots  may  know  that  their  services  are  not  re- 
quired, under  the  penalty  of  ten  dollars,  to  be  paid  by  the 
master  or  owner  to  any  one  of  the  pilots  who  may  first  sue 
for  the  same. 

20.  The  board  of  commissioners  shall  not  alter  the  rules  pilotage  of,  not 
and  regulations  concerning  pilotage,  prescribed  in  the  .two  pre-  ig-Q'^^^\f^''^i 
ceding  sections.  '  "     '  "  ' 

21.  Five  persons  who  shall  be  residents  of  the  towns,  re-  Comm'rs  of 
spectively,  and  possessed  of  a  freehold  therein,  shall  be  annu-  navigation  for 
ally  appointed  commissioners  of  navigation,  for  each   of  the  Washington, 
ports  of  Newbern,  Washington,  and  Edenton.     Those  for  the  yea^fy  appoin^^ 
ports  of  Edenton  and  Newbern,  shall  be  chosen  by  the  free-  ed. 

men  of  said  towns  respectively,  who  are  entitled  to  vote  for  po"ati°I"''" 
commissioners  of  the  towns,  at  the  same  time  and  in  the  like 
manner   as   are  elected  the  commissioners  of  the  respective 
towns  :  and  those  for  the  port  of  Washington  shall  be  ap- 
pointed by  the  county  court  of  Beaufort,    (seven  justices  at 
least  being  present,)  at  the  first  court  of  each  year :  and  all 
vacancies  in  said  boards,  whether  by  a  refusal  to  act,  resigna- 
tion, or  otherwise,  shall  be  filled  by  the  remaining  commission-  Vacancies.how 
ers,  until  the  same  shall  be  filled   (which  is  hereby  directed  to  fg^f^^®'°' 
be  done)  at  the  regular  period  of  election.  i842,c.65,s.  i. 

22.  The  said  commissioners  shall  have  power  to  contract  Power  of  com- 
with  proper  persons  to  examine  from  time  to  time,  the  situa-  e.'s.Ts^Izs. 
tioii  of  the  Swash,  and  keep  the  same  and  all  other  channels 

leading  from  Ocracock  bar  to  Newbern,  Washington,  Eden- 
ton, Plymouth,  and  Elizabeth  City,  well  and  sufficiently  staked 
out,  and  to  cause  buoys  and  beacons  to  be  placed  where  the 
commissioners  shall  think  most  convenient  for  the  safety  of 
vessels. 

23.  The  commissioners  of  the  port  of  Washington  shall  be  Com'rs  of 

a  body  corporate,  under  the  name  of    "  the  commissioners  of  bld~*cofporate. 
navigation  for  the  port  of  Washington,"  and  have  all  the  pow-  Their  style  and 
ers   of  a  corporation,  concerning   the    subjects  placed   under  MaTpurchase 
their  control ;  and  they  shall  have  authority  in  all  matters  that  lands  and  erect 
concern  the   navigation  of  PamUco  river  from  Willow  point  cd'Mng persona 
downwards,  and  may  purchase  and  sell  and  buy  again,  at  their  in  quarantine. 
discretion,  at  or  near  the   port  of  Washington  a  piece  of  land  pifvsic^n'°Ie. 
and  erect  thereon  suitable   houses  for  the  reception  of  persons  — is42,  c.  6o,s. 
on  board  any  vessel  which,  by  the  laws  of  the  State,  might  be  ^'^' 
compelled  to  perform   quarantine,  and  to  have  over  such   per- 
sons when  landed,  the  same  control  as  if  performing  quaran- 
tine in  the  accustomed  mode.     Also,  to  employ  a  physician  to 
attend  the  persons  landed  ;  to  furnish  them  with  such  articles 
of  provision,  clothing,  or  other  necessaries,  as  their  situation 
may  demand  during  their  continuance  there.     And  it  is  hereby 
enacted,  that  both  the  vessel  and  the  persons  so  landed  shall, 
in  all  things  and  to  every  intent  whatever,  be  considered,  while 
remaining  on  said  piece  of  land,  to  be  in  a  state  of  quarantine, 
and  subject,  both  they  and  all  persons,  to  the  same  penalties 
for  leaving  or  visiting  said  place,  for  breaking  or  violating  such 


466  PILOTS.  [Chap.  So. 

quarantine  in  any  respect  whatever,  as  if  the   said   persons  so 
landed  had  remained  on  the  vessel. 
forocmcoX'      ~^-    '^'^^  ^^^"^  "^  commissioners  for  the  port  of  Ocracock, 
tobecontiuu-   establisiied  by  the  twenty-ninth  section  of  an  act  of  the  Gen- 
thre^thJfesa    ^^^^  Assembly,  passed  in  the  year  1836,  entitled  "An  Act  to  re- 
yearatOcra-    duce  iiilo.one  the  several  ads  concerning  pilots  and  commission- 
ers of  navigation"  and  now  existing  by  virtue  of  the  provisions 
thereof,  shall  continue  to  exist ;  and  it  shall  be  their  duty  to 
meet  at  Ocracock  at  least  three  times  in  each  year,  or  a  ma- 
jority of  them,  after  giving  at  least  twenty  days'  notice  of  each 
meeting;  and  when   any  person  is    desirous   of   becoming  a 
pilot  at  Ocracock  bar  and  the  Swashes,  and  through  Pamlico 
and   Albemarle   Sounds,  he  shall  be  examined  by  said  board  ; 
To  appoint  pi-  ^'^d  when  found  competent  to  take  charge  of  any  ship  or  ves- 
swashes''&c'"'  ^^^  ^^  ^  pilot,  the  board  shall  issue  to  him  a  branch,  and  take 
'     ■     the  bond  prescribed  by  law  ;  and  no  person  shall  be  authorized 
to  act  as  a  bar  or  swash  pilot,  unless  he  shall  have  a  branch 
Jo^^eep  an  of-  from  said  board.    The  said  board  shall  have  an  office  at  Ocra- 
cock!    "'^^     cock,    in    which    shall  be  filed  the  bonds  of  the  pilots ;  and 
every  pilot  receiving  a   branch   from  said  board,  shall  pay  to 
Fees  paid  for    the  board  two  dollars  and  fifty  cents,  of  which  sum  those'liv- 
dL^o'sed'if "'''  i"g  °".  Portsmouth  and  Cape  Hatteras,  shall  receive  ten  cents 
Vacancies, how  per  mile  travelling  to   and  from  the  meeting    of  said  board, 
^^  and  the  residue  shall  be  divided  between  all  the  members  of 

'said  board  ;  when  a  vacancy  shall  occur  in  the  board  by  death, 
resignation,  or  refusal  to  act,  a  majority  thereof  shall  appoint 
some  suitable  person  thereto,  whose  residence  shall  be  at  the 
Com'rs  to  keep  ^^^^  place  where  the  vacancy  occurred.     Said  commissioners 
ajomnai,  and   shall  keep  a  regular  journal  of  their  proceedings;  and  before 
take  oath.        entering  on  the  duties  of  their  office,  they  shall  take  and  sub- 
scribe before  any  justice  of  the  peace  of  the  counties  of  Car- 
teret or  Hyde,  or  before  the  collector  of  the  port  of  Ocracock, 
the  following  oath  :  "  I  do  solemnly  swear,  that  I  will  truly, 
faithfully,  and  impartially  examine  every  person  who  shall  ap- 
Branches  to      ply  to  me  for  a  branch,  to  the  best  of  my  ability :  so  help  me, 

expire  in  tUree    r^     j  jj       mL     i.  i  in  •        •        -i  ^  11 

years.— u.  s.  c.  '-'^ou-  Ihe  branches  shall  expire  m  three  years  from  the  date 
88,  s.  29.         thereof. 

Com'rs  of  navi-      25.    Each  of  the  county  courts  (a  majority  of  the  justices 

tercronswr^'^"^^-P'"'''^'^"*^  °^  ^'^^  counties  of  Carteret,  Onslow,  and  Hyde 
and  Hyde.  '  shall,  if  not  already  done,  appoint  five  commissioners  of  nav- 
Those  of  Carte  ^0*^^'°"  !  thosc  appointed  by  the  court  of  Carteret,  to  be  a  board 
ret,  a  board  for  for  Old  Topsail  inlet  and  the  waters  thereof;  those  appointed 
fif  &T'''' '°"  ^y  ^^"^  cowxi  of  Onslow  to  be  a  board  for  Bogue  inlet  and  its 
Of  Onslow,  a  Waters ;  those  appointed  by  the  court  of  Hyde,  to  be  a  board 
B?mu'e''i'nlet  f""^  Hatteras  inlet  and  its  waters.  And  when  vacancies  occur 
&c.  '      in  any  of  the  boards,  by  refusal  to  act,  by  resignation,  orother- 

boaMfor  Hnt-  ^'^f'  ^'^'^  remaining  members  of  such  board  siiall  fill  the  same, 
ter'as  inlet,  &c.  Until  the  Same  be  supplied  by  the  appointing  court,  which  is 
mioT"""'"'"'^  directed  to  be  dune  at  the  first  court  after  the  vacancy  occurs. 
PoweVsof  And  the  said  boards,  respectively,  shall  have  the  same  powers 
c.Ts's.l^.-'  ^^^^  authorities  as  to  pilots  and  pilotage,  as  to  staking  out 


Chap.  85.]  pilots.  46*7 

the  respective  channels,  and  as  to  placing  buoys  and  beacons,  184g,  o.  oo; 
of  their  several  and  respective  inlets  and  waters,  as  are  given  ^^*°'°"  ■''■'^" 
to  the  commissioners  of  navigation  for  the  ports  of  Newbern, 
Washington,  and  Edenton. 

26.  All  pilots  appointed  by  the  commissioners  of  navigation  Bonds  given  by 
for  Newbern,  Washington,  Edenton,  Ocracock,  Old  Topsail,  ^^'"^''•-K.  S. o. 
and  Bogue  inlets,  shall  give  bond,  with  sufficient  security,  for     '"■ 

the  amount,  and  in  the  manner  prescribed  for  the  bonds  of  the 
Cape  Fear  pilots,  in  section  six  of  this  chapter,  and  be  subject 
to  the  same  rules,  regulations,  and  right  of  recovery  as  are  there 
specified. 

27.  Every  pilot,  within  such  convenient  time  as  thecommis-  Tohaveatel- 
sioners  may  direct,  who  have  control  over  the  waters  within  ^?as°s!-R.T'o. 
which  he  acts,  shall  furnish   himself  with  a  good  telescope  or  ^^^i  s.  21.     "  ' 
spy-glass,  under  the  penalty  of  fifty  dollars,  to  be  paid  to  the 
commissioners. 

28.  Whenever  any  pilot  appointed  by  any  board  by  this  ^'*y  ^e  remov- 
chapter  authorized  to  appoint,  shall  on  trial  be  found  to  be  in-  havfJr.X'^^" 
competent,  or  shall  be  guilty  of  improper  conduct  by  intoxi- 
cation or  otherwise,  or  of  any  misbehavior  in   his  office,  the 

pilot  so  offending,  may  be  removed  from  his  office  by  the  board 
of  commissioners  under  whose  authority  he  is  acting,  by  a  no- 
tice to  him  in  writing;  and  if  after  such  removal,  he  shall  at-  p     ,.   , 
tempt  to  take  charge  of  any  vessel,  he  shall  forfeit  and  pay  two  ing°afterremo- 
hundred  dollars  for  the  use  of  said  board.     And  it  shall  be  the  ™J-j^g  ^^^^ 
duty  of  the  board  to  put  up  a  written  notice  of  the  removal,  movuf  pubifsh- 
in  the  public  places  within  the  port,  or  publish  it  in  some  con-  ll'-f  f;  % 
venient  newspaper.  '"       ' 

29.  If  any  person  shall  presume  to  act  as  pilot,  who  is  not  Penalty  for  act- 
qualified  and  licensed  in  the  manner  herein  prescribed,  he  shall  wuhout'u-' 
forfeit  and  pay,  for  the  use  of  the  commissioners,  forty  dollars  cense.-R.  S.  c. 
for  every  attempt   at  piloting.     Provided,   nevertheless,   that  *'*''■  ^' ^■ 
should  there  be  no  pilot  in  attendance,  any  person  may  con- 
duct into  port,  any  vessel  in  danger  from  stress  of  weather,  or 

in  a  leaky  condition. 

30.  If  the  master  of  any  vessel  shall  send  for  or  take  on  Pay  to  pilots 
board,  any  pilot  to  conduct  his  vessel  from  her  station  to  any  *''"'  'detention. 
other  place,  and  shall  afterwards  neglect  or  delay  to  remove 

such  vessel,  (wind  and  weather  permitting,)  he   shall  pay  to 
the  pilot  two  dollars  for  attending  each  day  he  shall  be  so  de- 
tained ;  and  if  any  vessel,  which  shall  be  boarded  by  a  pilot, 
without   or  within  any  of  the  inlets,  shall,  by  violence  of  the  Tuy  when 
weather  or  otherwise,  be  driven  to  sea,  the  master  or  owner  of  cotlt"aftIr 
such  vessel  shall  allow  and  pay  the  pilot  two  dollars  per  day.  boarding.-R. 
for  every  day  he  shall  be  on  board,  besides  the  fees  of  pilot-  33  "• ''"'  '•  ^'^' 
age. 

31.  When  any  pilot  shall  see  any  vessel  on  the  coast,  hav-  Penaitvfor 
mga  signal  for  a  pilot,  or  shall  hear  a  gun  of  distress  fired  off  "''g'«""'"S '" 
the  coast,  and  shall  neglect  or  refuse  to  go  to  the  assistance  Cvh,^  Tsl!''' 
of  such  vessel,  such   pilot  shall  forfeit  and  pay  one  hundred  "•■>'•  ^<'—^-  S- 
dollars,  to  be  recovered  in  the  name  of  the  State,  one  half  to  "'  '^^''•"■3®- 


468  PILOTS.  [Chap.  85. 

the  use  of  the  informer,  and  the  other  half  to  the  master  of 
the  vessel  ;  unless  such  pilot  is  then  actually  in  charge  of  an- 
other vessel, 
refaled^to'irave      ^^'    ^^  ^  branch  pilot  shall  go  off  to  any  vessel   bound  in, 
pay.— K.  s.  c.    and  offer  to  pilot   her  over  the  bar,  the   master  or  commander 
88,  s.  38.  (jf  gm>j,  vessel,  if  he  refuses  to  take  such  pilot,  sJiall  pay  to 

such  pilot,  if  not  previously  furnished  with  one,  the  same  sum 
as  is  allowed  by  law  for  conducting  such  vessel  in,  to  be  re- 
covered before  a  justice  of  the  peace,  if  the  sum  be  within  his 
jurisdiction. 
No  pilotage  on      33_    -^q  pilot,  acting  under  the  authority  of  the  commission- 
tons,  ers   of   navigation    for   Newbern,    Edenton,    Washington,    or 
Old  Topsail  inlet,  shall  be  entitled  to  pilotage  for  any  vessel 
Exception.—    mijer  sixty  tons  burden,  unless  such  vessel  shall  have  given  a 
30,39.      '       signal  for  a  pilot,  or  otherwise  shall  have  required  the  assist- 
ance of  a  pilot. 
r^efor^Eden-''      ■^^-    Branch    pilots    of    Edenton,    Washington,     Newbern, 
ton,  Washing-    Ocracock,  or  Hatteras,  shall  be  entitled  to  receive  of  the  com- 
Ooraoock' Hat-  'ii^nder  of  svich  vessel  as  they  may  have  in  charge,  the  follow- 
teras.— R.'  S.  c.  ing  pilotage,  namely :  for  every  vessel  of  sixty  and  not  over  one 
jl\a  *°!i7    1  hundred  and  forty  tons  burden,  from  the  other  side  of  the  bar, 

1S46,  c.  49,  s.  1,  J,  ,..'«,  .,  .       ,  -^  ' 

2,  3.  at  any  place  within  the  limits  of  the  pilot  ground,  to   Jseacon 

Island  road,  or  Wallace's  channel,  ten  cents  for  each  ton ;  and 
the  further  sum  of  two  and  a  half  cents  for  each  ton  over  one 
hundred  and  forty;  and  two  dollars  for  each  vessel  over  either 
of  the  swashes  ;  (that  is,  over  said  swashes,  either  to  or  from 
Beacon   Island  road,  or  Wallace's  channel,  or  over  any  shoal 
lying  intermediate,  between  either  of  said  swashes  and  Beacon 
Island  road,  or  Wallace's  channel) ;  for  every  ship  or  vessel 
from  the  mouth  of  the  swash  to  either  of  the  ports  of  New- 
bern or  Washington,  one  dollar  per  foot;  and  for  every  ship  or 
vessel  from  the  same  place  to  the  port  of   Edenton,  twelve 
dollars ;  and  to  the  port  of  Elizabeth  City,  ten  dollars ;  and  the 
same  allowances  down,  as  up,  and  outwards,  as  inwards. 
Harbormasters      35.    The  several  boards  of  commissioners  may  appoint  a 
pokited^y'^''    harbor  master  for  their  respective  ports;  and  the  commissioners 
boards.—         of  Old   Topsail  inlet  shall   appoint  a  harbor  master  for  the 
1846,  c.  69.       p^^^  ^j.  ggg^i^fovt.    They  shall  appoint  a  clerk  to  keep  books,  in 

which  shall  be  recorded  all  their  proceedings. 
Bates  of  niiot-       36.    The   branch  pilots  for  Old  Topsail  inlet  shall  be  en- 
smltnict.— "'''  titled  to  receive  of  the  commander  of  such  vessel,  as  they  may 
K.  S.  c.  88,  s.  have  charge  of,  the  following  pilotage,  namely  :  for  every  ves- 
*^'  sel  of  sixty  tons  burden,  from  the  outside  of  the  inlet,   at  any 

place  within  the  limits  of  pilot  ground,  into  Bogue  road  or 
Shackleford  road,  at  the  option  of  the  commander,  six  dol- 
lars ;  for  vessels  drawing  eight  feet  water  and  less  than  twelve, 
one  dollar  per  foot ;  for  all  vessels  drawing  twelve  feet  and 
upwards,  one  dollar  and  twenty-five  cents  per  foot ;  and  the 
same  fees  for  piloting  outwards  as  inwards. 
Ropie inlet.—  .37.  The  branch  pilots  for  Bogue  inlet  shall  be  entitled  to 
R^S.  c.  88,  s.    j.g(.pjve  of  the  commander  of  such  vessel,  as  they  may  have 


Chap.  85.]  pilots.  469 

charge  of,  the  following  pilotage,  namely  :  for  bringing  any 
vessel  into  the  said  inlet,  drawing  less  than  seven  feet,  from 
the  outside  of  the  bar  to  the  anchorage  before  the  town,  or 
the  customary  place  in  Hill's  channel,  fifty  cents  per  foot ; 
for  a  vessel  drawing  more  than  seven  feet,  seventy  cents  per 
foot;  and  the  same  fees  for  pilotage  outwards,  as  inwards. 

38.  Tlie  commissioners  of  navigation  for  the  several  ports  Fees  of  pilots 
of  this  State,  shall  annex  to  the  branch  or  commission,  by  branches.— r. 
them  given  to  each  pilot,  a  copy  of  the  fees  to  which  such  S.  c.  88,  a.  43. 
pilot  is  entitled. 

39.  If  any  slave  shall,  with  the  consent  of  his  owner,  and  Penalty,  when 
not  accompanied  by  a  pilot,  go  oft'  to   any  ship  or  vessel,  for  pilot^P^^S^  *^ 
the  purpose  of  bringing  such  ship  or  vessel  over  any  bar  or^s,  s.  44. 
inlet  of  the   State,  or  shall  pilot  any  such  ship  or  vessel  out  of 

and  over  any  bar  or  inlet,  the  owner  shall  forfeit  the  value  of 
such  slave,  to  be  recovered  in  the  name  of  the  State  ;  one  half 
to  the  use  of  the  person  suing  for  the  same,  the  other  half  to 
the  use  of  the  county  where  the  owner  resides. 

40.  The  several  boards  of  commissioners,   established  by  Boards  to  des- 
this  chapter,  may   designate   the  places  whereat,  within  the  b^'itoTi-i^™ 
waters  under  their  several  and  respective  control,  may  be  cast  iSsc.,  may  be 
and  thrown  ballast,  trash,  stone,  and  such  like  maLter :  and  if  y'enaity  for 
any  person  shall  cast  or  throw  from  any  vessel,  into  the  navi-  throwing  bai- 
gable  waters  of  Carteret  or   Onslow  counties,  of  Tar  or  Pam- into^a°^gJ^^lg■' 
lico  river,  or  into  the  navigable  waters  of  the  Cape  Fear,  or  water,  or  pull- 
any  other  river  in  the  State,  or  into  any  channel  of  navigable  ^qs  ^"—k.^ 
water  elsewhere   than  in  a  river,   any  ballast,   stone,    shells,  s.  c.  88,  s.  23, 
earth,  trash,  or  other  substance  likely  to  be  injurious  to  the  c^'cs^'sTI^^^' 
navigation  of  such  waters,  rivers,  or  channels;  or  if  any  per-  i646,o.  60,3.  3. 
son  shall  wilfully  pull  down  any  beacon,  stake,  or  other  mark, 

erected  or  placed  in  virtue  of  this  chapter,  or  any  by-law, 
order,  or  regulation,  passed  or  ordained  in  pursuance  thereof; 
the  person  so  offending  shall  be  deemed  guilty  of  a  misde- 
meanor, and  may  be  indicted  therefor  :  and,  moreover,  shall  for- 
feit and  pay  two  hundred  dollars,  to  be  recovered  for  the  use  of 
the  commissioners  in  whose  waters  the  oft'ence  was  committed. 

41.  If  any  pilot  shall  knowingly  suffer  any  such  unlawful  Penalty  on  pi- 
act  to  be  done,  and  shall  not  within  ten  days  thereafter  give  1°'^  ^"^  ","' '"" 

,  .  ,  .      .  .,.•'.  .  ^  forminc;  there- 

to the  said  commissioners,  or  one  01  them,  information  thereof,  of.— u.  s.  c.  88, 

such  pilot  shall  likewise  be  deemed  to  be  guilty  of  a  misde-  '■  ^^'  ^"'" 

meanor ;  and,  besides  the  usual  punishment  of  such  offence, 

on   convicfion,  shall  be  forever  incapable  of  acting  as  a  pilot 

in  the   State.     Provided  always,  that  it  shall  be  the  especial 

duty  of  the  commissioners  to  enforce  the  penalties  imposed  in 

every  section  of  this  chapter,  which,  or   part   of  which,  are 

given  to  the  commissioners. 

42.  One  half  of  all  the  penalties,  fines,  and  forfeitures,  im-  Penalties  and 
posed  in  this  chapter,  which,  or  any  part  of  which,  are  to  be  posed  of.— R. ' 
recovered  by  the  commissioners,  shall  belong  to   the  board,  s.  c.  ss,  s.  46. 
within  whose  jurisdiction  the  same  may  have  been  incurred, 

and  shall  be  applied  to  the  defraying  of  the   expenses  of  the 
40 


470  POOR.  [Chap.  86. 

board;  and  the  other  half  shall  be  applied  to  the  improvement 
of  the  navigation  of  the  waters,  within  the  same  jurisdiction. 
madefhereof'  ^^^^  ^"  annual  report  of  the  last-mentioned  half  of  such  re- 
ceipts, and  the  objects  on  which  the  same  may  have  been 
expended,  shall  be  made  to  the  board  of  internal  improvement. 


CHAPTEE   86. 


POOR. 


Sectios 

1.  Wardens  of  poor  elected  by  the  jus- 

tices.   To  be  notified,  &c. 

2.  To  serve  three  years,  and  take  oath. 

3.  Warden's  court  held  at  court  house. 

To  appoint  clerk,  &o.    Treasurer  to 
give  bond. 

4.  Penalty  on  clerks,  and  sheriffs,  &o. 

On    wardens,    refusing   to  qualify. 
Vacancies,  how  filled. 

5.  Three  wardens  may  call  a  court.   Pen- 

alty for  not  attending. 

6.  Wardens  to  keep  a  journal  of  proceed- 

ings.   To  keep  and  publish  annu- 
ally, accounts  of  receipts,  &c. 

7.  Tax  laid  by  majority  of  justices,  for 

poor. 

8.  Wardens,  &c.,  to  settle  with  succes- 

sors.   On  failure,  to  pay  SIOO.    Sum- 
mary recovery  of  money  detained. 

9.  Poor-houses  may  be  established. 

10.  Houses  and  poor  managed  by  war- 

dens. 

11.  Property  of  wardens  free  from  tax. 

12.  Legal  settlements,  how  acquired. 
(1.)  By  one  year's  residence. 

(2.)  Married  women  to  have  the  set- 
tlement of  husbands,  if,  iSio. 


Section 

(3.)  Legitimate  children,  that  of  their 
father  or  mother,  &c. 
(4.)  Illegitimate,  that  of  the  mother, 
&c. 

(5.)  Settlements  to  continue,  till  oth- 
ers acquired,  &c. 
13.  Paupers  to  be  removed  to  tlieir  settle- 
ments. Unless  sick  and  disabled. 
All  charges  to  be  paid  by  the  county 
of  his  settlement.  Housekeepers 
entertaining  paupers,  to  give  notice. 
H.  Families  of  poor  militia-men  oa  ser- 
vice, to  be  supported. 

15.  Disabled  slaves  provided  for  by  war- 

dens.    Owner  to  repay  charges. 

16.  If  dead,  his  estate  charged. 

17.  May  be  removed  to  owner's  county. 
Ifi.  Two  wardens  may  act  in  such  cases. 

19.  Proceedings  when  owner  about  to  re- 

move, and  leave  infinn  slave. 

20.  Stock  of  slaves  to  be  taken  by  war- 

dens. 

21.  Penalties  imposed  in  this  chapter  to 

go  to  the  poor. 

22.  County  court  may  pay  wardens. 


Wardensof  1.  The  justices  of  the  several  courts  of  pleas  and  quarter- 

poor  elected  •  ■     'i     1    •  ,      ,  ,1      ,-  ^  ,    ,'. 

by  a  majority    scssioHs,  a  majority  being  present,  at  the  first  term  held  on  or 

iwrc^t'"    ^^^^^  ^^^  ^"^^^  '^'^y  °^  January  in  the  year  in  which  wardens  of 
'  ■  the   poor  are  now  chosen,  and  every  three   years  thereafter, 

shall  elect  not  more  than  twelve,  nor  less  than  seven  freehold- 
ers, to  serve  as  wardens  of  the  poor  in  their  respective  coun- 
ties, for  the  term  of  three  years  next  after  the  election  :  and  the 
justices  shall,  at  the  term  of  electing  the  wardens,  appoint  a 
time  for  their  meeting,  of  which  the  clerks  shall  forthwith  issue 
notices  to  be  served  on  tiie  wardens  by  the  sheriff,  within  ten 
days  after  receiving  tliem. 

2.  The  wardens  shall  serve  for  three  years,  and  at  the  first 
meeting  next  after  the  election,  shall  take  before  some  magis- 


To  be  notified, 


To  serve  three 
years,  and 


Chap.  86.]  poor.  47I 

trate  the  oath  appointed  for  public  officers,  and  shall  take  and  take  oath.— R. 
subscribe  in  a  book  to  be  by  them  kept  for  that  purpose,  the  ^-  "'  ^^'  ^-  ^■ 
oath  of  office  prescribed  for  them. 

3.  The  court  of  wardens  shall  be  held  at  the  court  house ;  Court  of,  held 
and  a  majority  of  them  at  their  first  meeting  shall  appoint  a  ToTppoilir'*' 
treasurer  of  the  court,  and  take  from  him  a  bond  with  ample  c'e*,  i:c. 
security  for  the  faithful  discharge  of  his  duties ;  and  shall  also  Ji™  bomi-^'R. 
appoint  for  their  clerk  some   fit  person  who  shall  not  be  of  »•  <■■  ss,  s.  «._ 
their  own  body.  ""^^^  "■  "»• 

4.  Every  clerk  or  sheriff  failing  to  discharge  the  duties  pre- Penalty  on 
scribed  in  this  chapter,  and  every  person  elected  a  warden,  who  sJ,'e''rifl-,''"^j, 
shall  refuse  or  neglect  to  qualify  as  aforesaid,  after  notice  as  On  wardens, 
aforesaid,  shall  forfeit  and   pay  twenty  dollars ;  and  when  a  '■u'!",-}-"!^^.  g 
person  elected   shall  refuse  or  neglect  to  qualify,  or  when  a  c.^oV,  s!  4.- 
yacancy  may  occur  by  death,  removal,  or  otherwise,  a  major-  va^c-'mdefhow 
ity  of  the   other  wardens   shall  elect  of  freeholders   others  in  fiUed.""*^"' 
their  stead,  and  the  persons  so  chosen  shall  be  subject  to  the 

same  penalty  for  refusing  or  neglecting  to  qualify. 

5.  Any  three  wardens   may  call  a  court  of  wardens  when  Three  wardens 
necessary,  by  written  summons  directed  to  any  sheriff  or  con-  Tourt"*^ " 
stable  of  the  county,  who   shall  execute  the  same  under  the  Pe"!iity  for  not 
penalty  often  dollars  for  every  wilful  neglect;  and  every  war-  s"c!"89,^6^!^" 
den  summoned,  who  may  wilfully  neglect  to  attend,  shall  for- 
feit and  pay  the  like  sum. 

6.  The  wardens  shall  keep  in  well-bound  books  a  journal '"^»'''^<'".«*» 
and  minutes  of  their  proceedings,  in   which    shall   be   fairly  ofl^-oceedhig'. 
stated  accounts  of  all  moneys,  which  from  time  to  time  they 

shall  receive,  and  the  purposes  for  which  the  same  may  have 
been  disbursed ;  and   every  year,  at  the   next  court   of  their  And  publish 
respective  counties  after  the  first  day  of  June,  they  shall  pub-  countfjf'"'" 
lish  and  set  up,  at  the  court  house,  an  account  of  the  moneys  receipts  and 
received  from  taxes  or  otherwise,  for  the  purposes  aforesaid,  ITe?  s"^'!:"  s*^,' 
with  the  use  and  application  of  the  same,  particularly  specify-  s.  8. 
ing  the  expense  of  the  paupers,  with  an  account  of  the  claims 
or  debts  unpaid,  if  any,  and  to  whom  due;  under  the  penalty 
of  two  hundred  dollars  for  the  use  of  the  county,  to  be  prose- 
cuted by  the  solicitor  thereof. 

_  7.   On  application  of  the  wardens,  the  justices,  when  pro-  Tax  for  poor 
Tiding  for  other  county  revenue,  may  lay  a  tax  sufficient  for  j^v'^of  m"i'c^'' 
the   maintenance  of  the  poor,   which  shall  be  collected   and  — E.  s.  c.  ss,  s. 
paid  to  the  wardens,  at  the  same  time  as  other  county  taxes  "' 
are  paid  to  the  county  trustee. 

8.  When  the  wardens  go  out  of  office,  they  and  their  clerk  Wardens  going 
and  treasurer  shall  deliver  to  the  succeeding  wardens  all  their  °e"tufwifh!.uc- 
books,  journals,  and  minutes  of  proceedings,  and  shall  settle  cessors. 
with,  and  pay  to  their  successors,  all  the  money  remaining  in 
their  hands ;    and   on   failure  to   do  so,   each   of  the   persons  On  failure,  to 
offending  shall  forfeit  and   pay  to  the  successors  one  hundred  £"•'■'  ^"''- 
doilars  ;    which   sum,  with    any  money  that  may  be  in   the  • 


coverv  ot 


hands  of  the  offending  person,  may  be  recovered  by  suit  against  f°'^l  '^^"''"- 
him  ;  and  in  case  of  any  default  by  the  treasurer  of  such  out-  m,'  s.  11.  ' ''' 


472 


Poor-houses 
mfiv  be  estab- 
lished.—R.  S. 
c.  89,  s.  12. 


Houses  and 
poor  under 
direction  of 
wardens. — R. 
S.  c.  S9,  s.  13. 


Property  not 
taxed. — R.  S. 
c.  89,  s.  14. 
Legal  settle- 
ments, how  ac- 
quired. 

By  one  year's 
residence. — E. 
S.  c.  5,  s.  1?. 

Married  wo- 
men to  have 
the  settlement 
of  their  hus- 
bands, if,  &c. 


Legitimate 
children,  that 
of  their  fatlier 
or  mother,  i5;c, 


Illegitimate 
children,  that 
of  their  mother, 
&c. 


Settlements  to 
continue,  till 
others  acquir- 
ed, &c. 


Ponpers  to  be 
removed  to 
their  settle- 
ments. 


POOR.  [Chap.  86. 

going  wardens,  his  bond  may  be  sued  by  their  successors,  both 
for  the  penahy  aforesaid  and  the  money  detained  ;  or  the 
money  in  his  hands  may  be  recovered  with  the  forfeiture 
aforesaid,  against  him  and  his  sureties,  on  motion  in  any 
court  of  record,  after  giving  them  ten  days'  notice  of  the 
motion. 

9.  The  court  of  pleas  and  quarter-sessions,  a  majority  of  the 
justices  being  present,  may,  when  they  deem  it  necessary,  pur- 
chase lands,  and  cause  to  be  erected  houses  for  the  mainte- 
nance and  support  of  the  poor  of  their  county. 

10.  The  wardens,  twenty  days'  notice  being  given,  shall 
annually  let  out  to  the  lowest  bidder,  or  employ  some  person 
as  overseer  of,  the  said  poor-houses  and  poor  of  their  respec- 
tive counties,  as  to  them  may  seem  best ;  and  such  overseer 
shall  give  bond  payable  to  the  State  of  North  Carolina,  with 
security  for  the  faithful  discharge  of  the  duties  assigned  to 
him.  And  the  wardens  may  ordain  by-laws,  rules,  and  regu- 
lations, and  do  all  such  matters  and  things  as  they  shall  deem 
expedient  for  the  comfort  of  the  poor. 

11.  The  property  held  by  the  wardens  of  the  poor  shall  be 
exempt  from  tax. 

12.  Legal  settlements  may  be  acquired  in  any  county,  so  as 
to  entitle  the  party  to  be  supported  as  a  pauper  therein,  in  the 
manner  following  and  not  otherwise. 

(1.)  Every  person,  who  shall  have  resided  continuously  in 
any  county  for  one  year,  shall  be  deemed  to  be  legally  settled 
in  that  county. 

(2.)  A  maiTied  woman  shall  always  follow  and  have  the  set- 
tlement of  her  husband,  if  he  have  any  in  the  State  ;  otherwise, 
her  own  at  the  time  of  marriage,  if  she  then  had  any,  shall  not 
be  lost  or  suspended  by  the  marriage,  but  shall  be  that  of  her 
husband,  till  another  is  acquired  by  him',  which  shall  then  be 
the  settlement  of  both. 

(3.)  Legitimate  children  shall  follow  and  have  the  settle- 
ment of  their  father,  if  he  have  any  in  the  State,  until  they 
gain  a  settlement  of  their  own  ;  but  if  he  have  none,  they  shall, 
in  like  manner,  follow  and  have  the  settlement  of  their  mother, 
if  she  have  any. 

(4.)  Illegitimate  children  shall  follow  and  have  the  settle- 
ment of  their  mother,  at  the  time  of  their  birth,  if  she  then  have 
any  in  the  State.  But  neither  legitimate  nor  illegitimate  chil- 
dren shall  gain  a  settlement  by  birth,  in  the  county  in  which 
they  may  be  born,  if  neither  of  their  parents  had  any  settle- 
ment therein. 

(5.)  Every  legal  settlement  shall  continue,  till  it  shall  be 
lost  or  defeated  by  acquiring  a  new  one,  within  or  without  the 
State :  and  upon  acquiring  such  new  settlement,  all  former 
settlements  shall  be  defeated  and  lost. 

13.  Upon  complaint  made  by  the  wardens  before  a  justice 
of  the  peace,  that  any  person  has  come  into  their  county,  who 
is  likely  to  become  chargeable  thereto,  the  justice  by  his  war- 


Chap.  86.]  pook,  473 

rant  shall  cause  such  poor  person  to  be  removed  to  the  county 
where  he  was  last  legally  settled;  but  if  such  poor  person  be  Unless  sick  and 
sick  or  disabled,  and  cannot  be  removed  without  danger  of  life, 
the  wardens  shall  provide  for  his  maintenance  and  cure  at  the 
charge  of  the  county ;  and  after  his  recovery  shall  cause  him 
to  be  removed,  and  pay  the  charges  of  his  removal:  and  the  All  charges  to 
county,  wherein   he   was   last  legally  settled,  shall  repay  all  comity  oniie" 
charges   occasioned   by  his   sickness,  maintenance,  cure,  and  settlement. 
removal,  and  all  charges  and  expenses  whatever,  if  such  person 
shall  die  before  removal.     And  if  the  wardens  of  the  county, 
to  which  such  poor  person  belongs,  shall  refuse  to  receive  and 
provide  for  him  when  removed  as  aforesaid,  every  warden,  so 
refusing,  shall  forfeit  and  pay  forty  dollars,  for  the  use  of  the 
county  whence  the  removal  was  made ;  moreover,  if  the  war- 
dens of  the  county,  where  such  person  was  legally  settled,  shall 
refuse  to  pay  the  charges  and  expenses  aforesaid,  they  shall  be 
liable  for  the  same,  by  suit  in  the  superior  court;  and  if  any  Housekeepers 
housekeeper  shall  entertain  such  poor   person,  and  shall  not  paupers°to^ 
give  notice  thereof  to  the  wardens  of  his  county,  or  one  of  give  notice.— 
them,  within  one  month,  the  person  so  offending  shall  forfeit  i^j    ' "'     '  *" 
and  pay  ten  dollars. 

14.  When  any  citizen  of  the  State  is  absent  on  service  as  a  Families  of 
militia-man,  and  his  family  are  unable  to  support  themselves  m°e°n  on  service 
during  his  absence,  the  court  of  wardens  of  his  county,  on  ap-  supported.— R. 

O  '  J    '  I  C      r,      go      a      Ift 

plication,  shall  make  towards  their  maintenance  such  allow-    •  ■     >  •     • 
ances  as  they  think  reasonable. 

15.  The  owner  of  any  slave,  incapable  of  service  from  age  Disabled  slaves 
or  other  disability,  shall  provide  him  with  proper  food, raiment,  !^™^enf'°'' ''^ 
and  lodging;  and   if  any  such  slave   shall  be  unprovided  as 
aforesaid,  the  wardens  of  the  county,  where  the  slave  may  be, 

shall  furnish  him  Avith  food,  raiment,  and  lodging,  and  charge  Owner  to  repay 
the  owner  therewith,  and  may  recover  against  him  the  price,  c.'sg^'s!  19. 
before  any  tribunal  having  jurisdiction  of  the  amount  of  the 
demand.  Provided,  however,  that  the  wardens  shall  inform 
the  owner  of  their  proceedings,  as  soon  as  practicable,  by  no- 
tice directed  to  the  sheriff  or  constable  of  his  county,  who  shall 
execute  the  same  forthwith,  and  make  return  thereof  to  the 
wardens  by  whom  it  was  issued. 

16.  If  the  owner  of  such  slave  be  dead,  his  executors  or  Iff'^*'!.  his  es- 
administrators  shall  provide  for  him  out  of  the  estate  of  the  handVot''ex'ec-° 
deceased;  and  upon  failure  so  to  do,  the  wardens  shall  provide  ito"".  adminis- 
for  him,  and  proceed  against  such  executors  or  administrators  g™ardiiu"— R. 
in  every  respect,  as  against  the  owner ;  or,  if  such  slave  shall  t"-  <=■  69,  «•  2f- 
be  under  the  control  of  a  guardian,  he  shall  provide  for  the 

slave  out  of  the  estate  of  his  ward ;  and  upon  failure,  the  war- 
dens shall  provide  for  the  slave,  and  proceed  against  the  guar- 
dian in  manner  aforesaid ;  and  such  executors,  administrators, 
and  guardians  shall  be  allowed  the  expense  of  making  such 
provision,  in  their  settlements. 

17.  When  such  slave  shall  be  in  a  county  other  than  the  Snch  slave 
county  where  the  owner,  or  the  executors  or  administrators  of  eJ  to  owners 

40* 


474 


PRISONEES. 


[Chap.  87. 


connty.— R.  s.  a  deceased  owner  or  guardian  reside,  the  wardens  may  remove 

■'■^  ■       him  to  the  owner,  or  to  the  executors  or  administrators  of  the 

deceased  owner,  or  to  the   guardian,  at  the  expense  of  such 

owner,  executors,  administrators,  or  guardian. 

Two  wnrdens        18.    Any  two  of  the  Wardens  shall  have  authority  to  execute 

K^S.^c.  fs'^g.'"  the  foregoing  provisions,  relative  to  disabled  slaves. 

Pr'oc  edin'  ^^'    "^  Wardens",  or  any  one  of  them,  on  information,  that 

■n™en  owuCT      ^"Y  person  is  about  to  remove  out  of  the  county,  and  has  a 

about  to  re-      slave  likely  to  become  a  county  charge,  may  issue  a  warrant 

"rve'iufirm      to  bring  such  person  before  him  or  them,  and  shall  take  such 

fr'^'is^  S. c.  security  by  bond,  payable  to  the  State  of  North  Carolina,  as 

'  ^'     ■  may  be  sufTicient  to  indemnify  the  county  :   And  in  case  such 

person  shall  refuse  to  give  bond,  he  or  they  shall  have  power 

to  commit  him,  until  he  shall  enter  into  such  bond,  or  remove 

the  slave  without  the  limits  of  the  county. 

20.  All  horses,  cattle,  hogs,  sheep,  or  other  stock,  that  shall 
belong  to  any  slave,  or  be  of  any  slave's  mark,  shall  be  seized 
and  sold  by  the  wardens,  and  the  proceeds  by  them  applied, 
the  one  half  to  the  support  of  the  poor,  and  the  other  half  to 
the  informer. 

21.  The   several  forfeitures   and   penalties  by  this  chapter 
impte'r' to'be    imposed,  unless  otherwise  directed,  shall  be  recovered  for  the 

r'^S^c'^sT's"  "^^  °^  ^^^  wardens  of  the  poor  of  the  county,  wherein  the  for- 
25.  ■  ■     '  ■    feiture  or  penalty  was  incurred. 

County  court  22.  The  court  of  pleas  and  quarter-sessions  may  order  that 
S.— fs5™'^.  the  wardens  of  the  poor  of  their  county  shall  be  paid  for  the 
^^-  services  rendered   in  the   capacity  of  wardens;  each  warden 

first  making  appear  to  the  satisfaction  of  the  court,  by  his 
oath,  the  character  and  extent  of  the  services  rendered,  for 
which  he  claims  compensation;  and  such  payment  shall  be 
made  by  the  clerk  of  the  wardens,  out  of  any  funds  in  his 
hands  not  otherwise  appropriated. 


Stock  of  slaves 
to  be  taken  by 
■wardens. — R. 
S.  c.  89,  s.  24. 


Penalties  im 
posed  in  this 


Sect.  1G.  Executors  de  son  tori,  not  liable,  6  Ire,  356. 
Sect.  20.  2  Ire.  06. 


CHAPTER    87. 


PRISONERS. 


Section 

1.  Keepers  of  jails  to  keep  prisoners  of 

United  States.     To  have  Eame  fees, 
as  for  State  prisoners. 

2.  When  jail  destroyed,  prisoners  sent  to 

jail  of  adjoining  county. 

3.  If  no  jail,  or  jail  unsafe,  court  may 

cumiuit  in  like  manner. 


Skctiom 

4.  The  sheriff,  &c., may,  likewise.   Jailor 

of  such  county  liable  for  escape. 

5.  Sheriff  apprehensive  of  escape,  how 

to  obtain  guard.     Guard  to  be  paid. 

6.  Prisoners  for  crime  to  pay  jail  fees. 

7.  Expense  of  guarding  and  removing 

prisoners,  &c.,  by  what  county  paid. 


Chap.  87.] 


PRISONERS. 


475 


Section 

8.  Prisoners  may  buy  necessaries.    Pen- 

alty on  jailers,  for  injuring  prison- 
ers. 

9.  Jaiier  to  cleanse  jail,  furnish  diet,  &;c. 

10.  Blankets    and   bedclothing   provided 

for  prisoners.    Blankets,  &c.,  used 
by  slaves. 

11.  Prison-bounds  for  health  of  prisoners, 

laid  out  by  court.    Bond   to  keep 
bounds. 

12.  Bond,  in  criminal  cases,  returned  to 

court  and  deemed  a  recognizance. 


Section 

13.  In  civil   cases   on   mesne    process^   to 

stand  as  security  for  final  judgment. 

14.  In  cases  of  imprisonment    on    final 

process,  deemed  a  judgment.  On 
breach  of  bond,  debtor  excluded 
from  bounds. 

15.  Prisoners,  how  transferred  to  sheriff's 

successor. 

16.  To  be  confined  in  proper  apartments. 

Penalty  for  confining  them  other- 
wise. 


1.  Whereas,  it  is  recommended  by  the  resolve  of  the  first 
session  of  the  congress  of  the  United  States  to  the  legislatures 
of  the  several  States,  to  pass  laws  making  it  expressly  the 
duty  of  the  keepers  of  their  jails  to  receive,  and  safely  keep 
therein,  all  prisoners  committed  under  the  authority  of  the 
United  States,  until  they  shall  be  discharged  by  the  due  course 
of  law,  under  the  like  penalties  as  in  the  case  of  prisoners  com- 
mitted under  the  authority  of  such  States  respectively,  the 
United  States  promising,  on  their  part,  to  pay  for  the  use  and 
keeping  of  such  jails,  at  the  rate  of  fifty  cents  per  month,  for 
each  prisoner  who  shall  be  committed  under  their  authority, 
during  the  time  such  prisoner  shall  be  confined  therein,  and 
also  to  support  such  prisoners  as  shall  be  committed  for  of- 
fences.    To  carry  the  said  resolve  into  effect,  be  it  enacted,  that, 

when  a  prisoner  shall  be  delivered  to  the  keeper  of  any  jail  in  Keepers  of 
the  State,  by  the  authority  of  the   United  States,  such  keeper  .i^''^  to  receive 
shall  receive  the  prisoner,  and  commit  him  accordingly:  and  oners  of'iL"^ 
every  keeper  of  a  jail,  refusing  or  neglecting  to  take  possession  States. 
of  a  prisoner  delivered  to  him  by  the  authority  aforesaid,  shall 
be  subject  to  the  same  pains  and  penalties,  as  for  neglect  or 
refusal  to   commit  any  prisoner  delivered   to   him   under  the 
authority  of  the   State.     And  the  allowance  for  the  mainte-  To  have  sams 
nance  of  any  prisoner  committed  as  aforesaid,  shall  be  equal  to  ^^'^^  =^  ^?^ 
that  made  for  prisoners  committed  under  the  authority  of  the  ers'!-^^"s°T 
State.  90,  s.  1. 

2.  Whenever  the  jail  of  any  county  shall  be  destroyed  by  AVhenjailde 
fire  or  other  accident,  any  justice  of  the  peace  of  such  countv  **'™.ved, prison- 

11         •  1  J 1         ,  r-        1     >         .         J   ers  sent  to  lail 

may  cause  all  prisoners  who  may  then  be  confined  therein,  to  of  adjoining 
be  brought  before  him ;  and  upon  the  production  of  the  pro- 
cess, under  which  any  prisoner  was  confined,  shall  order  his 
commitment  to  the  jail  of  any  adjacent  county;  and  the 
sheriff",  constable,  or  other  officer  of  the  county,  deputed  for  that 
purpose,  shall  obey  the  order  ;  and  the  sheriff  or  keeper  of  the 
common  jail  of  such  adjacent  county  shall  receive  such  prison- 
ers upon  the  order  aforesaid,  and  in  case  of  neglect  shall  be 
deemed  guilty  of  a  misdemeanor,  and  held  as  for  an  escape. 

3.  Whenever  it  shaU  happen  that  there  shaff  be  no  public  Or  if  no  jail,  or 
jail,  or  an   unfit  or  insecure  jail,  in  any  county,  the  superior  j.'J'urt" may 
courts  of  law  and  courts  of  equity,  the  courts  of  pleas  and  commit,  kc-— 
quarter-sessions,  judges,  justices  of  the  peace,  and  aU  judicial  J^- S- c.  90,  k  3. 


county. — E.  S. 
"      .2. 


476 


PRISONERS. 


[Chap.  87. 


Also  sheriffs, 
&c. 


Jailer  of  such 
couuty  liable 
for  escape. — 
K.  S.  c.  90,  s.  ( 


Sheriff,  appre- 
hensive of 
escape,  how  to 
obtain  guard. 


Guard  to  be 
paid.— R.  S. 
c.  90,  s.  5. 


Prisoners  for 
crime,  to  pay- 
jail  charges. — 
R.  S.  c.  00,  s.  6, 


Expense  of 
guarding  and 
removing  pris- 
oners, Scc.j 
by  what 


officers  of  such  county,  may  commit  all  persons  who  may  be 
brought  before  them,  whether  in  a  criminal  or  civil  proceeding, 
to  the  jail  of  any  adjoining  county,  for  the  same  causes,  and 
under  the  like  regulations  that  they  might  have  ordered  com- 
mitments to  the  usual  jail ;  and  the  sherifl's,  constables,  and 
other  officers  of  such  county,  in  which  there  may  be  no  jail,  or 
an  unfit  one,  and  the  sheriffs  or  keepers  of  the  jails  of  the 
adjoining  counties,  shall  obey  any  order  of  commitment,  so 
made,  under  pain  of  being  guilty  of  a  misdemeanor. 

4.  The  sheriffs,  constables,  and  other  ministerial  officers  of 
any  county,  in  which  there  may  be  no  jail,  shall  have  authority 
to  confine  any  prisoner  arrested  on  process,  civil  or  criininal, 
and  held  in  custody  for  want  of  bail,  in  the  jail  of  any  adjoin- 
ing county,  until  bail  be  given  or  tendered.  And  any  sheriff 
or  jailer  having  a  prisoner  in  his  custody,  by  virtue  of  any 
mode  of  commitment  provided  in  this  chapter,  shall  be  liable, 
civilly  and  criminally,  for  his  escape,  in  the  same  manner  as  if 
such  prisoner  had  been  confined  in  the  prison  of  his  proper 
county. 

5.  Whenever  the  sheriff  of  the  county,  or  keeper  of  the  jail, 
shall  apprehend  that  there  is  danger  of  a  prisoner's  escaping, 
through  the  insufficiency  of  the  jail  or  other  cause,  it  shall  be  his 
duty,  without  delay,  to  make  information  thereof  to  a  judge  of 
the  superior  court,  the  attorney-general,  or  a  solicitor,  if  any  of 
those  officers  be  in  the  county,  and  if  not,  then  to  three  justices  of 
the  peace  ;  and  they  are  authorized,  if  they  deem  it  advisable,  to 
furnish  the  sheriff"  or  keeper  of  the  jail  with  an  order  in  writing, 
addressed  to  the  commanding  officer  of  the  county,  setting 
forth  the  danger,  and  requiring  him  forthwith  to  furnish  such 
guard  as  to  him  may  appear  to  be  suitable  for  the  occasion. 
For  which  service,  the  persons  ordered  on  guard  shall  receive 
such  compensation,  as  militia-men  in  actual  service  for  defence 
of  the  State  ;  and  on  application  for  pay,  the  letter  to  the  com- 
manding officer,  on  which  the  guard  was  ordered,  and  the  cer- 
tificate of  such  officer,  countersigned  by  the  sherifl"  or  jailer, 
together  with  the  deposition  of  the  officer  of  the  guard,  stating 
the  time  of  service,  and  that  it  was  faithfully  performed,  shall 
be  sufficient  to  authorize  the  payment  of  the  same. 

6.  Every  person  committed  to  a  public  jail,  by  lawful 
authority,  for  any  criminal  ofienee  or  misdemeanor  against  the 
State,  shall  bear  all  reasonable  charges  for  carrying  and  guard- 
ing him  to  jail,  and  also  for  his  support  therein  until  released; 
and  all  the  estate,  which  such  person  possessed  at  the  time  of 
committing  the  offence,  shall  be  subject  to  the  payment  of 
such  charges  and  other  prison  fees,  in  preference  to  all  other 
debts  and  demands ;  and  if  there  be  no  visible  estate  whereon 
to  levy  such  fees  and  charges,  the  amount  shall  be  paid  by  the 
county. 

7.  The  expense  for  guarding  prisons  shall  be  paid  by  the 
county  wherein  the  prison  is  situ;ited;  and  for  conveying 
prisoners,  as  also  the  expen.'^e  attending  such  prisoners  while  iu 


Chap.  87.]  prisoners.  477 

jail,  when  the  same  may  be  chargeable  on  the  county,  shall  be  county  paid.— 
paid  by  the  county  from  which  the  prisoner  is  removed.  K.  s.c.  do,  s.  7. 

y.  Prisoners  shall  be  allowed  to  purchase  and  jarocure  such  Prisoners  may 
necessaries,  in  addition  to  the  diet  famished  by  the  jailer,  as  '"'T  °''*'^^*^ 
they  may  think  proper;  and  to  provide  their  own   bedding.  Penalty  on 
linen,  and  clothing,  without  paying  any  perquisite  to  the  jailer  ■||J'/^"p°^j,'"q. 
for  such  indulgence ;  and  if  the  keeper  of  a  public  jail  shall  ers.—R.  s.  o. 
do,  or  cause  to  be  done,  any  wrong  or  injury  to  the  prisoners  ^'^'^'  *" 
commmitted  to  his  custody,  contrary  to  the  intention  of  this 
chapter,  he  shall  not  only  pay  treble  damages  to  the  person 
injured,  but  shall  be  deemed  guilty  of  a  misdemeanor. 

9.  The  sheriff  or  keeper  of  any  public   prison  shall,  every  Jailer  to 
day,  cleanse  the  room  of  the  prison  in  which  any  prisoner  shall  f ''^;^"a°  J,'^''; 
be  confined,  and  cause  all  filth  to  be  removed  therefrom  ;  and  &c.— R.  S.  s. 
shall  also  furnish  the  prisoner  a  plenty  of  good  and  wholesome  ^^'  ^-  ^■ 
water,  three  times  in  every  day ;  and  shall  find  each  prisoner 

fuel,   one   pound   of  wholesome    bread,    one  pound   of  good 
roasted  or  boiled  flesh,  and  every  necessary  attendance. 

10.  The  court  of  pleas  and  quarter-sessions,  from  time  to  Blankets  and 
time   as   may  be    necessary,   shall  order   the   sheriff  of  their  t'edciothing 
county  to  purchase,  for  the  use  of  their  jail,  a  certain  number  prS.uers."'^ 
of  good  warm  blankets,  or  other  suitable  bedclothing;  which 

shall  be  securely  preserved  by  the  jailer,  and  furnished  to  the 
prisoners  for  their  use  and  comfort,  as  the  season  or  other  cir- 
cumstances may  require  ;  and  the  sheriff,  at  least  once  in  every 
year,  shall  report  to  the  court,  the  condition  and  number  of 
such  blankets  and  bedclothing.     Provided,  that  whenever  ne-  Blankets,  &e., 
gro  prisoners  are  allowed  to  use  said  blankets  or  clothing,  their  "'""^  ^J'  si'i'^es. 
owner  shall  pay  to  the  jailers,  besides  the  other  fees,  two  and  Tio.  '  "'  ^''' 
a  half  cents  per  day,  for  every  blanket  used  by  such  prisoners  ; 
which  sum  shall  be  accounted  for  to  the  court. 

11.  For  the  preservation  of  the  health  of  such  persons  as  Prison  bounds 
shall  be  committed  to  the  county  prisons,  the  court  shall  mark  p^sonert  Md 
out  such  a  parcel  of  the  land  as  they  shall  think  fit,  not  ex-  out  by  court. 
ceeding  six  acres,  adjoining  to  the  prison,  for  the  rules  thereof; 

and  every  prisoner,  not  committed  for  treason  or  felony,  giving  Bond  to  keep 
bond  with  good  security  to  the  sheriff  of  the  county  to  keep  ''°g[J'^°'T?'  ®' 
within  the  rules,  shall  have  liberty  to  walk  therein,  out  of  the  '^^     '  "     ' 
prison,  for  the  preservation  of  his  health  ;  and  on  keeping  con- 
tinually within  the  said  rules,  shall  be  deemed  to  be  in  law  a 
true   prisoner;    and,   that   every   person    may  know  the    true 
bounds  of  said  rules,  they  shall  be  recorded   in   the  county 
records,  and  the  marks  thereof  shall  be  renewed  as  occasion 
may  require. 

12.  Every  such  bond  taken  of  any  person  confined  for  an  Bond  in  enm- 
offence,  or  otherwise  than  on  process  issuing  in  a  civil  case,  !"irnertTo''court 
shall  be  returned  to  the  court  by  whose  order  or  process  such  and  deemed  a 
person  is  confined,  or  which  may  be  entitled  to  cognizance  of '''^'^"e"'^-"'"- 
the  matter,  and  shall  be  deemed  of  the  force  and"  effect  of  a 
recognizance;  and  on  breach  thereof  shall  be  forfeited,   and 

shall  be  collected  as  a  forfeiture,  in  the  name  and  for  the  use 
of  the  State,  and  applied  as  other  forfeited  recognizances. 


478  PRISONERS.  [Chap.  87. 

Inciviicnseson      13.  And  every  such  bond  taken  of  any  person  committed 
to'^s?aiu[as"e-   °'^  *^i^i'  process  before  final  judgment,  shall  be  returned  to  tiie 
cuiity  for  fiuai  court  whence  the  process  issued,  and  shall  be  assigned  to  the 
ju  gment.         plaintiff  therein ;  and  on  breach  thereof  the  bond  shall  stand 
as   a  security  for  any  judgment  which  the  plaintiff  may  re- 
cover against  the  defendant,  and  may  be  proceeded  on  and 
enforced  in  the  same  manner  and  under  the  same  rules  and 
restrictions,  as  are  provided  in  the  next  section,  for  obtaining 
judgment  against  persons  confined  on  final  process. 
In  cases  of  im-      14.  Every  such  bond  given  by  any  person  committed  on  a 
fi"a°proce3°°   capias  ad  satisfaciendum,  or  in  custody  after  final  judgment, 
deemed  a  judg-  shall  be  assigned  by  the  sheriff  to  the  party  at  whose  instance 
such  person  was  committed  to  jail,  and  shall  be  returned  to 
the  office  of  the  clerk  of  the  court  where  the  judgment  was 
On  breach  of    rendered,  and  shall  have  the  force  of  a  judgment;  and  if  any 
excfuded^frum  pcson,  who  shall  obtain  the  rules  of  any  prison,  as  aforesaid, 
bounds.— R.  s.  shall  escape  out  of  the  same,  before  he  shaU  have  paid  the 
e.  90, 6. 12.       debt  or  damages  and  costs   according  to  the  condition  of  his 
bond,  the  court  where  the  bond  is  lodged,  upon  motion  of  the 
assignee  thereof,  shall  award  execution   against  such  person 
and  his  sureties  for  the  debt  or  damages  and  costs,  with  in- 
terest from  the  time  of  escape  till  payment;  and  no  person 
committed  to  jail  on  such  execution  shall  be  allowed  the  rules 
of  prison.    Provided,  koivever,  that  the  obligors  have  ten  days' 
previous  notice  of  such  motion,  in  writing;  but  they  shall  not 
be  admitted  to  plead  non  est  factum  in  their  defence,  unless  by 
alfidavit,  they  prove  the  truth  of  the  plea. 
Prisoners,  bow      15.  The  delivery  of  prisoners,  by  indenture  between  the  late 
siieriff'ssuc-     ^""^  present  sheriff",   or  the   entering  on  record  in  court  the 
cessor.— R.  S.    names  of  the  several  prisoners,  and  the  causes  of  their  com- 
c.  8  ,  s.  13.       mitment,  delivered  over  to  the  present  sheriff,  shall  be  sufficient 
to  discharge  the  late  sheriff"  from  all  liability  for  any  escape 
.  that  shall  happen. 
Prisoners  to  be      16.  The  sheriff  or  jailer  shall  confine  those  committed  to  his 
proper*apart-     Custody  in  the  apartment,  provided  and  designated  by  law,  for 
ments.  persons  of  the  description  of  the  prisoner;  and  if  a  sheriff  or 

TOnfinmgThem  jailer,  Wantonly,  or  unnecessarily  otherwise  confine  prisoners 
otiierwise.— K.  in  his  custodv,  it  shall  be  a  misdemeanor  in  office. 

S.  c.  90,  8.  14.  •' 


Sect.  11.  Prison  rules:  when  prisoner  for  misdemeanor  entitled  to,  4  Ire.  543.  Mltfn 
loml  may  be  taken,  8  Ire.  175.  Tender  of  bond  bit  prisoner,  1  Hawlis,  427.  Remedy  on 
bond,  1  Slur.  421.    How  discharged,  3  Mur.  270,  2  lb.  369. 


Chap.  88.] 


PROCESSIONING. 


479 


CHAPTER    88. 


PROCESSIONING. 


Sbctiox 

1.  Processioners   of  land  nppoiuted  by 

county  court. 

2.  Oath  and  terra  of  office. 

3.  Owners  to   give  written  notice,  and 

processioner  to  have  a  copy. 

4.  Land    partly   in   two   counties,   Iiow 

processioned. 

5.  Processioner  to  make  certificate  and 


Section 

return  it  to  clerk,  &c.  To  be  re- 
corded. 

6.  When  line  disputed,  and  processioner 

forbidden  to  proceed,  lie  shall  report 
to  court.  Five  freeholders  then  ap- 
pointed with  processioner. 

7.  Person    having    land   twice    proces- 

sioned, deemed  owner.  Who  not 
bound  by  processioning. 


1.  The  county  courts  shall  appoint  one  or  more  persons  Processioners 
capable  of  surveying,  to  act  as  processioners  in  their  respective  'ippo'nted^y 
counties,  for  the  purpose  of  having  processioned  the  lands  of  S.  c.  si,  s.  i.' 
such  persons  as  desire  it.     And  any  processioner,  when  there 

are  several,  may  act  alone. 

2.  Every  processioner  shall  take  an  oath  of  office,  and  shall  Oath  and  terra 
continue  in  office  until  he  resign  or  remove  from  the  county,  c!sM-2^^'^' 
or  be  displaced  by  the  court. 

3.  The  proprietor  of  any  land  who  may  desire  to  have  it  Owners  to  give 
processioned,  shall  give  ten  days'  notice  in  writing  to  all  per-  ceslioucr'to^'^'*" 
sons  whose  lands  maybe  adjoining  to  his;  a  copy  of  which  have  a  copy.— 
notice,  signed  by  the  person  serving  it,  shall  be  delivered  to  the  ^'  ^'  "'  ^^'  ^-  ^■ 
processioner. 

4.  When  a  tract  of  land  shall  lie  partly  in  two  or  more  Land  partly  m 
counties,  the  processioner  of  either  county  shall  procession  the  fX  proc^^' 
same  in  like  manner  as  if  the  whole    tract  lay  in  the  same  sioned. 
county. 

5.  The  processioner  shall  make  a  plat  of  each  tract  of  land  Processioner  to 
processioned,  and  also  a  certificate  of  the  same,  which  certifi-  "'Je  and  return 
cate  shall  contain  the  claimant's  name,  the  quantity  of  acres,  't  to  clerk,  &c. 
the  corners,  length,  and  course  of  each  line,  and  shall  be  signed  tv  derk^-R?^ 
and  returned  with  a  copy  of  the  several  notices,  to  the  court  s".  c.  oi,'s.  5,6. 
of  pleas  and  quarter-sessions  of  the  county  for  which  the  pro- 
cessioner is  appointed  ;  and  the  same,  with  the  plat,  shall  be 
recorded  by  the  clerk  in  a  bound  book  kept  for  that  purpose, 

and  filed  together  in  his  office  ;  and  the  fees  of  the  processioner 
and  clerk  shall  be  paid  by  the  proprietor  of  the  land. 

6.  In  all  cases  where  a  line  is  disputed,  and  the  processioner  When  line 

is  forbidden   by  any  of  the  persons  interested  in  the  event  of  '^ro^essfoner'^ 

the  processioning,  to  proceed  further  in  running  and  marking  forbidden  to 

the  same,  he  shall  report  the  matter,  stating  truly  all  the  cir- f',';"Jf ^f^'^'/t  to 

cumstances   of  the  case,  with  the  names  of  the  persons  who  court. 

forbade  further  proceedings,  to  the  ne.xt  succeeding  court  of 

the  county  for  which  the  processioner  is  appointed ;  and  the 

court  shall  thereupon  appoint  five  respectable  freeholders,  who  JrsTueutp-'^' 


480  PUBLIC  ARMS.  [Chap.  89. 

pointed  with     shall  appear  \vHh  the  processioner  on  the  line  or  lines  so  dis- 
^"s.T'or.TT  puted,  and  proceed  (after  being  sworn  by  the  processioner  or 
some  justice  of  the  peace,  to  do  equal  right  and  justice  be- 
tween the  contending  parties,)  to  establish  such  disputed  line 
or  lines,  as  shall  appear  to  them  right,  and  procession  the  same, 
and  make  report  of  their  proceedings  to  the  next  succeeding 
court;  which  shall  be  recorded  as  above  directed.     Provided, 
nevertheless,  that  either  of  the  parties  may  call  in  any  other 
surveyor  to  act  with  the  processioner  and  comi)lete   such  sur- 
vey ;  and  the  party  against  whom  the  decision  is  made  shall 
pay  all  costs. 
Person  having       7.    Every  person  whose  lands  shall  be  processioned  to  him, 
!;e"s'ioiTedf  ^'™"  according  to  the  directions  of  this  chapter,  at  two  several  times, 
deemed  owner,  shall  be  deemed  and  adjudged  to  be  the  sole  owner  thereof; 
and,  upon   any  suit  commenced  for  such  lands,  the  party  in 
possession  may  plead  the  general  issue,  and  give  the  proceed- 
ings under  this  chapter  in  evidence.     Provided  always,  that 
the  processioning  of  the  lands  of  a  tenant  for  life  shall  not 
bar  or  preclude  the  heir,  or  other  person  in  reversion  or  remain- 
■Who  not  bound  der ;  neither  shall  any  processioning  bar  or  preclude/ewe  coverts, 
hff^TsI™"  psi'soiis  under  age,  non  compos  mentis,  imprisoned,  or  out  of 
sits.  8.'  the  State  ;  but  all  such  persons  may  sue  for,  and  dispute  the 

title  and  bounds  of  any  such  lands,  if  they  will  commence 
and  prosecute  their  suit  within  the  time  limited  by  law,  after 
the  removal  of  such  disability. 


Sect.  6,  Report  of  processioner,  7  Ire. '. 
lb.  23,  lb.  185,  3  Mur.  604. 


when  forbidden  to  proceed,  3  Ire.  204,  4 


CHAPTER    89, 

PUBLIC  ARMS. 


Sectioit 

1.  Public  arms  to  be  deposited  in  arse- 

nals, &c. 

2.  Keeper  of  arms  at  arsenals  appointed 

by  adjutant-general.     Superintend- 
ent at  Newbern,  by  governor. 
8.  Volunteer  companies,  how  to  obtain 
amis. 

4.  A  town  or  senior  colonel  may,  on  giv- 

ing bond. 

5.  Arms  distributed  on  invasion,  &c. 


Section 

6.  Duty  of  ofEcers  receiving  arms. 

7.  Not  keeping  arms  in  order,  penalty. 

8.  Selling,  buying,  or  embezzling  public 

arms,  misdemeanor. 

9.  On  death,  &c.,  of  the  private,  his  arms 

delivered  to  successor. 

10.  Officers  to   demand  public   arms  of 

persons  not  entitled. 

11.  Detachments  in  service    may  have 

arras,  when. 


Public  arms  to  1.  All  the  public  arms  of  every  description,  belonging  to  the 
pubiicarsc^nais^  State,  which  may  not  be  distributed  among  the  militia  accord- 
&c.— P..  S.  c.  ing  to  law.  shall,  under  the  direction  of  tiic  adjutant-general, 
c.'i.     ~"      '  Ijc  deposited  and  kept  in  the  public  arsenals  established   at 


Chap.  89.]  public  arms.  481 

Raleigh  and  Fayetteville,  and  the  depot  of  arnns  in  the  town 
of  Newbern  or  its  vicinity,  in  such  jiroportions  as  the  governor 
may  prescribe. 

2.  The  adjutant-general  shall,  at  each  place  where  an  arse-  Keeper  nf 
nal  or  depot  of  arms  is  established,  appoint  some  suitable  per-  ^","*  "tarse- 

c      1  111111  !•         "'''^i  appointed 

son  keeper  oi  the  same,  who  shall  be  allowed  not  exceeding  by  adjutant- 
sixty  dollars  per  annum  ;  and  the  superintendent  of  the  depot  s^'^.'rfntend- 
of  arms  in  the  town  of  Newbern  or  its  vicinity,  for  his  services  entatNew- 
and  the  rent  of  a  building,  shall  receive  one  hundred  and  fifty  emor— R^'sc 
dollars  yearly;  the  one  half  thereof  to  be  paid  semiannually.  92,  s.  2.— 1846, 
The   adjutant-general   may  make   regulations    respecting   the  g'. ^'552*^' 52 
duty  of  the  superintendent;  may  require  bond  and  security  for 
the  faithful  discharge  of  his  duty ;  and  at  the  pleasure  of  the 
adjutant-general  he  may  be  removed,  and  another  appointed 
in  his  place.     The  governor  may  make  such  provisions  as  he 
may  think  necessary  for  guarding  and  protecting  the  arsenals 
and  depots  of  arms;  and  for  the  purpose  of  defraying  the  ex- 
penses incurred  under  this  and  the  preceding  section,  he  may 
upon  the  certificate  of  the  adjutant-general,  from  time  to  time 
draw  on  the  public  treasurer,  for  such  sums  as  may  be  neces- 
sary. 

3.  "Whenever  any  volunteer  company  of  infantry,  light-  Voiunteercom- 
infantry,  or  riflemen,  artillery,  or  cavalry  may  be  formed  out  oMa^'pubTic" 
of  the  militia,  and  it  shall  appear  to  the  governor,  by  a  certifi-  arms.— R.  S.  c. 
cate  from  the  brigadier-general  of  the  brigade  in  which  such  0.2^1854.  ' 
company  is  formed  ;  or,  in  case  of  his  death  or  absence,  by  the 
certificate  of  the  highest  officer  in  command  of  the  militia  of 

any  county  where  such  company  may  be  formed,  that  the  said 
corps  has  enrolled,  as  members,  the  number  of  officers  and 
men  required  for  such  a  company,  and  is  otherwise  equipped 
except  as  to  arms  and  accoutrements,  then  the  governor  may 
direct  such  portion  of  the  arms  as  may  be  necessary  for  the 
company,  to  be  delivered  to  the  commanding  officer,  taking 
his  receipt  for  the  same ;  but  no  such  officer  shall  be  allowed 
to  draw  the  arms  before  he  shall  have  given  bond,  with  two 
good  sureties,  if  required,  in  double  the  appraised  value  of  the 
arms,  conditioned  for  the  safe-keeping,  cleaning,  and  returning 
thereof,  whenever  the  company  shall  be  dissolved,  or  the  gov- 
ernor shall  direct. 

4.  In  case  the  public   authority  of  any  town,  or  the  senior  A  town,  or 
colonel  of  any  county,  shall  petition  the  governor  for  any  num-  'n.''y'''o';^ghhi" 
ber,  not  exceeding  sixty-five  stand,  of  the  public  arms,  he  is  bonj'.  — £.  s." 
authorized  to  furnish   them.     Provided,  bond  be  given,  with '^' '''^''' ■*' 
approved  security  if  required,  for  the  safe-keeping,  preserva- 
tion,  and  return  of   the    same.     And  provided,  that  no   one 

county  shall  receive  a  greater  number  than  sixty-five,  unless  in 
case  of  insurrection  or  invasion. 

5.  In  case  of  insurrection  or  invasion,  or  a  probability  there-  Anns  dis- 

of,  the  governor  is  authorized  to  distribute  the  public  arms  and  v«l'i^!f  &c?-^B. 
send  them  to  such  places  as  he  may  deem  necessary  and  ex-  s.  c.  w,  s.'s. 
41 


482  PUBLIC  ARMS.  [Chap.  89. 

pedient,  and  to  draw  warrants  on  the  treasurer  of  the  State, 
for  the  sums  necessary  for  that  purpose. 
Duty  of  militia      6.  When  public  arms  shall  be  delivered  to  any  colonel  com- 
i'n^'^arms!— E?  mandant,  for  distribution  in  his  county,  he  shall  take  receipts 
S.°c.  92,  s.  6.     of  the  captains  in  whose  hands  they  may  be  placed,  and  give 
the  necessary  orders  for  keeping  the ,  arms  safe  and  in  good 
order ;  and  the  captains,  when  they  distribute  the  arms  to  their 
respective  companies,  shall  take  from  each  man  a  receipt  at 
full  length  under  seal,  in  the  muster  book  of  their  companies, 
in  double  the  value  of  the  arms,  conditioned  for  the  safe-keep- 
ing and  returning  thereof,  when  called  for  by  the  colonel  com- 
mandant; which   muster   or  receipt  book,   shall  be   carefully 
kept,  and  be  subject  to  the  inspection  of  the  colonel  whenever 
he  may  desire  it ;  and  on  the  death,  resignation,  or  removal  of 
the  captain,  the  book  shall  be  handed  over  to  the  officer  who 
may  be  appointed  to  command  the  company. 
Not  keeping  7.  Every  non-commissioned  officer  and  private  belonging  to 

penalty  for'!—    ^ny  company  equipped  with  public  arms,  shall  keep  and  pre- 
R.  S.  0. 92,  S.7.  serve  his  arms  and  accoutrements  in  good  order,  and  in  a  sol- 
dierlike manner ;  and  for  every  neglect  to  do  so,  shall  be  fined 
by  the  court-martial  of  his  company,  a  sum  not  less  than  two 
nor  more  than  ten  dollars ;  which  fines  shall  be  laid  out  by  the 
captains   for  the  repairs  of  the  arms :    and  if  a  company   so 
equipped  shall  generally  keep  their  arms  in  a  negligent  and 
unsoldierlike  manner,  the  colonel  to  whose  regiment  the  com- 
pany belongs,  shall  deprive  said  company  of  the  public  arms 
and  accoutrements,  and  bestow  them  on  some  other  company 
of  his  regiment,  under  the  regulations  aforesaid. 
Selling,  buy-         8.  If  any  person  to  whom  shall  be  confided  public  arms  or 
Eifn<'°pu™ii'c^"  accoutrements,  shall  sell,  or  in  any  manner  embezzle  the  same, 
nnns,  misde-     or  any  part  thereof,  or  if  any  person   shall   purchase   any  of 
e!  M°T.'7^'  ^'  them,  knowing  them  to  be  such,  the  person  so  offending  shall 
be  deemed  to  be  guilty  of  a  misdemeanor,  and  shall  be  fined 
not  exceeding  fifty  dollars,  and  imprisoned  not  less  than  one 
month. 
On  death,  &c.,       9.   When  any  non-commissioned  officer  or  private  of  such 
hL\?m™cieiiv-  Company  shall  die,  remove  from  the  county,  or  be  excused  from 
ered  to  succes-  performing  military  duty,  the  captain  thereof  shall  immediately 
If^'Zfl  ^'  '^'    take  his  arms  and  accoutrements  into  possession,  and  deliver 
them  to  his  successor  in  the  company:  and  the  captain  shall 
keep  them  safely  and  in  good  order,  while  they  remain  in  his 
possession, 
omcers  to  do-        10.  Every  commissioned  officer  of  the  militia,  whenever  and 
mwof  penons  wherever  he  shall  sec  or  learn  that  any  of  the  arms  belonging 
not  entitled—  to  the  State,  are  in  the  possession  of  any  person  other  than  in 
l£.s.  c.  92,  s.    .^^jjogg  imnti(j  they  may  be  placed  for  safe-keeping,  under  the 
provisions  of  this  chapter,  shall  make  immediate  demand  for 
the  same,  personally  or  in  writing;  and  should  such   person 
refuse  to  deliver  them  to  the  officer,  he  shall  be  deemed  guilty 
in  like  manner,  and  punished  in  like  manner,  as  for  selling  or 
embezzling  public  arms. 


Chap.  90.] 


PUBLIC   DEBT. 


483 


11.   The  governor  may  order  the  colonel  commandant  of  the  netachments 
county  where  any  of  the  public  arms  may  be  distributed,  to  j|\*'^'"^'.'^''„™''y 
place  the  same  in  the  hands  of  any  detachment  of  the  militia  when.—   ' 
ordered  into  the  service  of  the  State,  or  of  the  United  States,  f{  ''^  '^-  ^^'  ^■ 
if  he  shall  judge  it  necessary. 


CPIAPTER    90. 


PUBLIC   DEBT. 


Section 

1.  All  bonds  and  certificates  of  debt  is- 

sued by  the  State  to  be  registered. 

2.  Bonds   and    certificates    transferable. 

Mode  of  transfer. 

3.  In  what  manner  State  bonds  shall  be 

executed,  &o.  Coupons  of  interest 
attached.  Money  where  payable. 
No  bond  less  than  S1,0C0  to  issue; 
or  be  sold  under  par. 


Section 
4.  A  memorandum  of  State  bonds,  with 

numbers,  &c.,  to  be  kept. 
6.  What  State  bonds  exempt  from  tax. 

6.  Guardians,    executors,  and    trustees, 

may  invest  in  State  bonds. 

7.  Title  of  the  act,  or  date  and  chapter, 

to  be  recited  in  the  bond. 


1.  The  bonds  of  the  State  for  five  hundred  thousand  dol-  All  bonds  and 
lars  issued  under  the  authority  of  the  act  of  the  General  dob't'\ssu'ea°by 
Assembly  of  the  year  eighteen  hundred  and  forty-six,  entitled  State  to  be  reg- 
"  An  Act  to  provide  for  the  transfer  of  the  bonds  of  the  Ra- '^^'g'' 3'^2T ^845' 
leigh  and  Gaston  Railroad  Company,  indorsed  by  the  State,"  c.  39,  s.  i. 
and  payable  on  the  fii-st  day  of  January,  eighteen  hundred 
and  sixty:  the  "certificates  of  debt"  issued  on  behalf  of  the 
State  for  the  sum  of  two  hundred  thousand  dollars,  under 
the  authority  of  the  act  of  the  General  Assembly  of  the  year 
eighteen  hundred  and  forty-eight,  entitled  "  An  Act  to  provide 
for  the  payment  of  the  debt  of  the  State  to  the  Bank  of  Cape 
Fear,  to  the  Bank  of  the  State,  and  other  debts  due  on  ac- 
count of  indorsement  by  the  State  for  the  Raleigh  and  Gaston 
Railroad,"  and  payable  at  the  end  of  ten  years  from  the  date 
of  the  issue  of  said  certificates,  respectively  :  the  "  certificates 
of  debt "  of  one  hundred  and  twenty  thousand  dollars,  issued 
under  the  authority  of  the  act  of  the  General  Assembly  of 
the  year  eighteen  hundred  and  forty-eight,  entitled  "  An  Act 
to  incorporate  the  Fayetteville  and  Western  Plank-Road 
Company,"  and  payable  at  the  end  of  twenty  years  from  the 
date  of  the  issue:  the  "certificates  of  debt"  already  issued, 
and  which  may  b'e  issued,  for  two  millions  of  dollars,  under 
the  authority  of  the  act  of  the  General  Assembly  of  the  year 
eighteen  hundred  and  forty-eight,  entitled  "  An  Act  to  incor- 
porate the  North  Carolina  Railroad  Company,"  and  payable 
at  the  end  of  thirty  years  from  the  date  of  their  issue  :  the 
"  certificates  of  debt "  for  two  hundred  thousand  dollars,  issued 
under  the  authority  of  the  act  of  the  General  Assembly  of  the 


484  PUBLIC  DEBT.  [Chap.  90. 

year  eighteen  hundred  and  fifty,  entitled  "  An  Act  to  provide  for 
the  payment  of  the  debt  of  the  State,"  and  payable  in  like 
time  :  and  ail  other  bonds  and  "certificates  of  de>bt,"  ii5sued  by 
and  in  the  name  of  the    State,  or  which   may  hereafter  be  is- 
sued by  the  authority  of  any  statute  now  or  hereafter  to  be 
enacted,  shall  be  duly  registered  by  the  public  treasurer,  in  a 
book  to  be  kept  by  him  for  that  purpose. 
Bonds  and  cer-      2.    All  bonds  or  certificates  of  debt  of  the  State,  which  now 
'ifio^J^s  t'^*"^-  are  or  hereafter  may  be   issued  on   behalf  of  the  State,  shall 
Mode  of  trans-  be  transferable  :   such  as  are   payable  to  bearer,  by  delivery ; 
^f'T'^jjjQ"   and  such  as  are  payable  to  the  holder  by  name  alone,  may  be 
0.58,8.4;  1852,  transferred  by  the  holder,  or  by  his  agent,  in  a  book  to  be  kept 
"=•  11-  for  that  purpose  by  the  public  treasurer,  on  surrendering  for 

cancellation  the  outstanding  bond  or  certificate  ;  and  in  this 
latter  case  of  transfer,  a  new  bond  or  certificate  for  the  same 
amount  shall  be  issued. 
In  what  man-        3.    All  bonds  Or  Certificates  of  debt  of  the  State,  hereafter 
"er  State  bonds  ^Q  be  issued  as  originals,  or  as  substitutes  for  such  as  may  be 
cuteii,&c.        surrendered  for  transfer,  by  virtue  of  any   act   now  or  to  be 
hereafter  passed,  shall  be  signed  by  the  governor,  and  coun- 
tersigned by  the  public  treasurer,   and   sealed   with  the  great 
seal  of  the  State,  and  shall  be  made  payable  to  such  person 
by  name  as  may  be  the  purchaser,  or  to  bearer  ;  and  the  prin- 
cipal shall  be  made  payable  by  the   State,  at  a  day  named  in 
Conpons  of  in-  the  bond  or  certificate.      And  coupons  of  interest,  in  such 
terest  attached,  fgj.^  ^g  j^^y  be  prescribed  by  the  public  treasurer,  shall  be 

Money,  wliere  .'  ^.^  i,  -^j  i 

paj'abie.  attached  to  the  certificate,  and  the   certificates  and  coupons 

tonTiooo  to^t.tached  thereto,  shall  be  made  payable  at  such  bank  or  place 
issue;  or  be      in  the  city  of  Ncw   York,  as  the  public  treasurer  may  desig- 

—  1848''" sd"^'  "^t^'  °^  ^^'  *-^^  office  of  the  public  treasurer  at  Raleigh,  if  pre- 
.=.22;  1852,0.  ferred  by  the  purchaser.  Provided,  howeve?;  that  if  the  pur- 
9, 10, 8. 1.         chaser  or  holder  so  may  desire,  the  bond  or  certificate  shall 

be  payable  to  him  alone,  and  not  to  bearer.     And  provided 

fvrtJter,  that  no  certificate  shall  issue  for  a  less  sum  than  one 

thousand  dollars,  unless  the  same  be  issued  for  a  surrendered 

bond  of  less  amount:  nor  shall  any  original  bond  or  certificate 

of  debt  of  the  State  be  sold  for  a  sum  less  than  par  value  : 

nor  shall  any  such   bond   or  certificate,  issuing  in  lieu  of  a 

transferred  bond  or  certificate,  be  payable  elsewhere  than  may 

be  the  original,  except,  by  the  consent  of  the  holder,  it  may  be 

made  payable  at  the  public  treasury. 

A  memoran-         4.    The  public  treasurer  shall  enter  in  a  book  to  be  kept  for 

b3s°wftl'i'"'    that  purpose,  a  memorandum  of  every  bond,  or  certificate  of 

numbers,  &c.,   debt  of  the  State,  issued  or  to  be  issued  by  the  State,  under 

i'ssif  0^10^2.  any  act  whatever,  together  with  the  numbers,  dates  of  issue, 

when  and  where  payable,  at  what  premium,  and  to  whom  the 

same  may  have  been  sold  or  issued. 

What  State  5.    The  original  bonds,  or  certificates  of  debt  of  the  State, 

from\axati'on    which  havc  been  issued  since  the  first  day  of  January,  eighteen 

—  1S62,  c.  10,  hundred  and  fifty-three,  or  which  may  hereafter  be  issued 
*•  *■  under  the  authority  of  any  act  whatever;  as  likewise  the  bonds 


Chap.  91.] 


PUBLIC   DOCUMENTS. 


485 


ay 
invest  in  Stnte 
bonds.  — 1650, 
c.  90,  s.  2. 


and  certificates  substituted  for  such  original  bonds  and  certifi- 
cates, shall  be,  they  and  the  interest  accruing  thereon,  exempt 
from  taxation. 

6.  Guardians,  executors,  and  other  persons,  holding  funds  in  Guardians,  ex 
trust  to  be  invested  and  kept  on  interest,  may,  unless  prohib-  tras'°'es  may 
ited,  invest  the  "same  in  bonds  or  certificates  of  debt  of  the 
State,  or  in  any  securities  for  the  payment  whereof  the  State 
is  responsible,  now  or  hereafter  to  be  issued  ;  and  in  all  settle- 
ments they  shall  be  deemed  cash,  and  may  be  paid  as  such  by 
transfer  thereof  to  the  persons  entitled. 

7.  In  every  bond  or  certificate  of  debt  issued  by  the  State,  Title  of  the  act, 
and  in  the  body  thereof,  shall  be  set  forth  the  title  of  the  act,  chapter""  be 
with  the  year  of  its  enactment,  under  the  authority  of  which  recited  in  tiie 
the  same  may  be  issued ;  or  reference  thereto  shall  be  made  by   °"  " 

the  number  of  the  chapter,  and  the  year  of  the  legislative 
session. 


CHAPTER    91. 


PUBLIC  DOCUMENTS. 


Section 
1.  Public  documents  of  federal  govern- 
ment, how  distributed. 


Section 

2.  Secretary  to    furnish    documents   to 

New  York  Historical  Society. 

3.  Library  of  documents  established. 


1.  The  laws  of  congress,  and  all  the  other  public  printed  Public  docu- 
documents,  transmitted  to  this  State  by  the  general  govern-  frovernment. 
ment,  shall  be  distributed  by  the  secretary  of  State  in  the  fol-  how  distribu- 
lowing  manner,  to  wit :  two  copies  to  each  of  the  counties,  94^ 's.  i.' 
which  shall  be  deposited   in  the  offices  of  the   superior  and 

county  courts   in  each  county,  for  the  use  of  the  courts ;  one  * 

copy  to  every  judge  of  the  supreme  court,  and  the  superior 
courts  of  law  and  equity ;  one  to  the  attorney-general ;  one  to 
each  solicitor ;  one  in  each  of  the  offices  of  governor,  secre- 
tary of  State,  treasurer,  and  comptroller ;  three  copies  in  the 
library  of  the  university  ;  and  three  copies  retained  in  the  pub- 
lic library,  for  the  use  of  the  members  of  the  assembly,  and 
other  public  functionaries. 

2.  The  secretary  of  State  shall  furnish  to  the  agent  or  order  Secretary  to 
of  the   New  York  Historical  Society,  in  the   city  of  Raleigh,  ments  to  New 
one  bound  set  of  all   official  documents,  including  the  decis- y<"k Historical 
ions   of  the  supreme  court  and  the  laws  and  journals  of  the  Ke™  ■*  ' 
General  Assembly  of  the  State,  which  may  be  published  un- 
der the  laws,  or  by  order  of  the  General  Assembly. 

3.  The  principal  clerks  of  each   house  of  the  General  As- Uhrai-y  of  dnc- 
sembly  shall  collect  such   printed  documents  as  have  been,  or  [S™,ej'l^is54" 
shall  hereafter  be  ordered  to  be  printed  by  the  General  Assem-  c.  24. 

bly,  to  the  number  of  three  copies  of  each  document  for  each 
41* 


486 


PUBLIC   LIBRARY. 


[Chap.  92. 


house,  and  cause  the  same  to  be  bound  in  convenient  form, 
and  keep  them  on  shelves  which  they  shall  cause  to  be  erected 
in  their  offices,  for  the  use  of  the  members  of  their  several 
houses. 


CHAPTER    92, 


PUBLIC   LIBRARY. 


Section 

1.  Five  hundred  dollars  j'early   appro- 

priated to  librarj'. 

2.  Governor,    and   judges    of    supreme 

court  to  be   trustees   and    appoint 
librarian.     His  salary. 

3.  His  dutj'. 

4.  Governor  to  designate  docnments  to 


$500  yearly 
appropriated 
to  library. — 
1840,  c.  46. 
Governor  and 
judges  of  su- 
preme court  to 
be  trustees  and 
appoint  libra- 
rian. 


His  salary. — 
1840,  if.  46,  s.  2, 
7;  1842,0.68, 
%.  2. 


His  duty. — 
]840,c.46,s.B 
1844,  c.  62. 


Section 

be    preserved    and    bound.      What 
books  to  be  bound  and  labelled. 

5.  Penalty  for  injuring  books. 

0.  Tax  on  attorney's  licenses  at  Morgan- 
ton,  expended  for  books. 

7.  Judges  may  transfer  law-books  from 
Baleigh  to  Morganton. 


Governor  to 
designate  docu- 
ments to  be 
preserved  and 
bound. 


1.  The  sum  of  five  hundred  dollars  is  annually  appropriated 
for  the  increase  of  the  public  library  of  the  State. 

2.  The  governor,  and  judges  of  the  supreme  court,  and  their 
respective  successors  in  office,  are  appointed  trustees  of  the 
State  library ;  and  all  moneys  appropriated  for  its  increase 
shall  be  laid  out  under  their  direction  and  supervision :  the 
judges  of  the  supreme  court,  in  the  absence  of  the  governor,  or 
the  governor  and  any  of  the  judges,  in  the  absence  of  the 
others,  shall  be  a  quorum,  with  all  the  authority  vested  in  said 
trustees.  The  trustees  may  make  such  rules  and  regulations 
in  regard  to  the  library  and  the  use  of  the  books,  as  they  may 
deem  best ;  they  shall  appoint  a  suitable  person  as  librarian, 
at  a  salary  not  exceeding  three  hundred  dollars  a  year,  who 
shall  give  bond  with  security,  in  such  sum  as  they  may  deter- 
mine, payable  to  the  State  of  North  Carolina,  conditioned  for 
the  safe-keeping  of  the  books,  and  the  faithful  discharge  of  his 
duties. 

3.  The  librarian  shall  keep  the  library  open  for  the  accom- 
modation of  the  public,  on  every  day  in  the  year,  between  the 
hours  of  nine  and  twelve  o'clock,  M.,  and  between  two  and 
five  o'clock,  p.  M.,  (Sundays  and  the  fourth  day  of  July  ex- 
cepted) ;  he  shall  prepare  and  have  printed  a  catalogue  of  all 
the  books  in  the  library,  and  shall  report  to  each  succeeding 
General  Assembly  any  increase  or  diminution  of  the  cata- 
logue; he  shall  procure  and  preserve  in  the  library  two  of  the 
princi|)al  newspapers  in  tlic  State,  and  five  copies  of  the  jour- 
nals and  of  the  acts  of  tlie  General  Assembly. 

4.  The  governor  shall  designate  such  portions  of  the  docu- 
ment.s,  journals,  and  acts  of  the  congress  of  tlie  United  States, 
as  he  may  deem  proper  to  be  preserved  in  the  library  ;  may 
designate  which  of  them  are  to  be  bound,  of  such  pamphlets, 


Chap.  93.] 


PUBLIC   PRINTING. 


487 


acts,  and  journals  of  the  General  Assembly,  works  of  periodical 
literature,  laws  of  other  States,  and  documents  of  the  General 
Assembly,  that  may  be  added  to  the  library  ;  and  the  librarian 
shall  have  them  boand.     And  all  the  books  belonging  to  the  ^e'l''oundtnd° 
library,  or  which   may  be  added   thereto,  shall   be  labelled  in  labelled.— isio, 
gilt  letters  with  the  words  "  State  Library;"  and  the  governor  5842'c'6Vs  3. 
may  draw  upon  the  treasurer  for  such  sums  as  may  be  neces- 
sary to  defray  the  expenses  thereof. 

5.  Any  person  who  shall  damage,  deface,  or  mutilate  any  [Ifring^o^o^s  — 
book  which  he  may  be  allowed  to  withdraw  from  the  library,  1842,  c.  68,  s.i. 
or  who  shall  return  any  book   so  damaged,  defaced,  or  muti- 
lated while   in    his   possession,  shall   forfeit   and  pay  the  full 

amount  of  the  damage;  which  amount  shall  be  determined  by 
the  librarian,  but  in  no  case  to  exceed  double  the  value  of  the 
book ;  and  the  fines  and  forfeitures  accruing  under  this  sec- 
tion, shall  be  sued  for  and  recovered  by  the  librarian  in  the 
name  of  the  State,  before  any  justice  of  the  peace ;  and  the 
librarian  shall  be  a  competent  witness  to  prove  any  fact 
material  to  the  issue ;  and  the  fines  and  forfeitures  recovered 
shall  be  added  to  the  fund  for  the  increase  of  the  library. 

6.  The  clerk  of  the  supreme  court  at  Morganton,  under  the  Tax  on  attor- 
direction  of  the  judges  shall  apply  the  taxes  on  attorneys'  "tMor^anton 
licenses,  that  may  be  paid  to  him,  to  the  purchase  of  law-  expended  for 
books  for  the  supreme  court  library  at  Morganton.  c.  93.  ' 

7.  The  judges  of  the  supreme  court  may  direct  the  clerk  at  Judges  mar 

T»    1    •  ti-insfer  law- 

Raleigh  to  transmit  to  the  court  library  at  Morganton,  all  such  books  from 

law-books  as  can  be  spared  from  the  library  at  Raleigh.  Raleigh  to 

'  ./  o  Morganton. — 

1850,0.93,6.2. 


CHAPTER    93. 


PUBLIC  PRINTING. 


Section 

1.  State  printer  elected  biennially.  What 

printing  to  be  done.    Pay. 

2.  To  give  bond  in  five  thousand  dollars. 

3.  Bills,  &c.,  in  whatm.inner  printed. 

4.  A  practical  printer  to  assist  in  esti- 

mate of  work  done.    His  compensa- 
tion. 
6.  Paper   furnished,   and  binding,  con- 
tracted for,  by  secretary  of  State. 
Paid  for,  on  governor's  warrant. 

6.  Copy,  when  to  be  furnished,  nnd  work 

completed.   Laws  distributed  by  sec- 
retaiy. 

7.  Journals,  number  of  copies  printed, 

aud  for  whom. 


Section 

8.  Acts,  how   aiTanged.    What  printed 

on  the  margin.  Index  to  all  the 
acts. 

9.  Number  of  copies  to  be  printed  for 

members,  &c.,  and  bound  in  leather. 
Additional  number  stitched.  Num- 
ber of  public  documents.  Justices' 
names  to  be  recorded  by  secretary 
of  State.  Clerks  of  county  courts 
to  furnish  list  of  justices. 

10.  Blanks  to  be  printed  for  offices  of  gov- 

ernor, treasurer,  &c. 

11.  Vacancy  in  office  of  printer,  filled  by 

governor. 

12.  Repealing  clause. 


1.    A  State  printer  shall  be  biennially  elected  by  the  joint  f/^.'J,';';, j"'^^^" .. 
vote  of  the  two  houses  of  the  General  Assembly  on  the  second  ijiy.' 


488 


PUBLIC   PRINTING. 


[CiLVP.    93. 


What  printing 
to  be  done. 


Pay  of. 


To  give  bond 
in  $5,000. 


Bills,  &c.,  in 
what  manner 
printed. 


A  practical 
printer  to  assist 
in  estimate  of 
work  done. 


His  compen- 
sation. 

Paper  furnish- 
ed, and  binding 
contracted  for, 
by  sec'y  State. 


Paid  for  on 
governor's  war- 
rant. 

When  copy  to 
be  furnislicd, 
and  work  com 
pleted. 


Laws  distrib- 
uted by  sec'y. 


day  of  the  session,  who  shall  execute  the  printing  of  the  acts 
of  the  General  Assembly,  the  journals,  the  bills,  and  all  other 
documents,  and  all  other  printing  of  whatsoever  kind,  which 
may  be  ordered  to  be  done  by  the  General  Assembly,  except 
the  Revised  Code,  at  the  following  rates,  to  wit:  for  every  one 
thousand  cms  of  plain  work,  he  shall  be  allowed  sixty-two  and 
a  half  cents,  and  for  every  one  thousand  cms  of  rule  and  figure 
work,  one  dollar  and  twenty-five  cents,  and  for  every  token, 
sixty-two  and  a  half  cents. 

2.  The  State  printer  shall  give  bond,  with  approved  secu- 
rity, payable  to  the  State,  in  the  sum  of  five  thousand  dollars, 
conditioned  to  perform  faithfully  his  duties  under  this  chapter. 
The  bond  must  be  approved  and  accepted  by  the  governor, 
and  shall  be  filed  in  the  office  of  the  secretary  of  State. 

3.  The  bills  and  all  other  documents  ordered  to  be  printed 
by  either  branch  of  the  General  Assembly,  shall  be  printed  in 
octavo  form,  without  a  title-page.  But  the  first  page  shall  be 
printed  as  follows  :  at  the  head  of  the  page,  there  shall  be  four 
rules,  one  double,  two  single,  and  one  parallel,  extending  across 
the  page.  Between  said  rules  shall  be  printed,  first,  the  name 
of  the  house  where  the  bill  originated,  with  the  year  and  date 
of  the  session,  the  name  of  the  introducer,  and  the  name  of 
the  printer;  after  leaving  a  space  the  width  of  two  line  pica,  a 
synopsis,  or  caption  of  the  bill,  or  report  of  the  committee,  or 
whatever  it  may  be,  shall  be  set  up  with  pica  capitals.  After 
such  heading,  the  said  document  to  follow  immediately,  com- 
mencing with  a  paragraph,  allowing  a  space  the  width  of  small 
pica  between  the  heading  and  commencement  of  the  same. 

4.  In  estimating  the  amount  of  work  done,  the  State  printer 
shall  be  allowed  to  count  the  first  page  as  solid  matter;  and 
the  secretary  of  State  shall,  before  having  a  final  settlement 
with  the  State  printer,  call  in  to  his  aid  a  ])ractical  printer,  for 
the  purpose  of  estimating  the  amount  of  work  done  ;  and  any 
printer  so  called  in,  shall  be  allowed  a  compensation  not  ex- 
ceeding three  dollars  per  day. 

5.  AH  the  paper  for  the  printing  aforesaid,  shall  be  furnished 
by  the  secretary  of  the  State,  of  such  quality  as  may  be 
deemed  suitable  for  the  work.  The  secretary  of  State  shall 
also  contract  for  the  folding,  stitching,  and  binding  of  all  work 
authorized  by  this  act;  and  the  same,  together  with  the  cost 
of  the  paper  aforesaid,  shall  be  paid  by  the  treasurer,  on  a 
warrant  frorn  the  governor  upon  certificate  of  the  secretary. 

6.  The  secretary  shall,  within  thirty  days  from  the  adjourn- 
ment of  the  General  Assembly,  furnish  the  State  printer  with 
complete  copies  of  all  the  laws ;  and  the  clerks  of  each  house 
shall,  wilhin  twenty  days  thereafter,  deliver  to  the  printer  afore- 
said, complete  copies  of  the  journals.  The  printer  after  com- 
pleting the  laws  and  journals,  shall  have  them  addressed  to 
those  entitled  to  them,  and  packed  up  in  parcels  for  each 
county,  and  delivered  within  ninety  days  from  the  close  of 
the  session,  to  the  secretary  of    State,  who  shall    distribute 


ClIAP.    93.]  PUBLIC    PRINTING.  489 

said  journals,  acts,  and  documents  by  mail,  express,  or  some 
discreet  person,  as  he  may  deem  most  expedient. 

7.  A  sutTicient  number  of  the  journals  of  the  General  As-  .Journals,  nnm- 
sembly  shall  be  printed  to  supply  each  member  wit  li  a  copy,  p|:j''^"^j^"jP'^* 
five  copies  to  the  State  library,  one  copy  to  each  of  the  offices  tor  whom. 

of  governor,  secretary  of  State,  treasurer,  and  comptroller,  two 
copies  to  each  of  the  libraries  of  the  senate  and  house  of  com- 
mons, one  to  the  university  library,  and  one  to  the  office  of 
each  county  court  clerk  in  the  State.  Each  of  the  aforesaid 
copies  to  be  bound  in  leather. 

8.  The  acts  of  the  General  Assembly  shall  be  divided  into  ■^^^\l'"^  ^''" 
two  parts  or  volumes,  and  numbered  by  chapters  continu- what  printed 
ously  through  each  volume.     The  number  of  the  chapter  and  on  the  margin. 

•'    r   .<      ^         ■  ii  -ii  xu  •         f  Index  to  rU 

year  of  the  session,  to  be  prmted  on  the  margm  ot  every  page,  the  acts. 
in  Arabic  figures  of  suitable  size  ;  the  first  part  or  volume  to 
contain  an  index  of  all  the  acts  and  resolutions  of  the  Gen- 
eral Assembly,  the  public  laws,  and  the  comptroller's  state- 
ment of  the  public  revenue  and  expenditure:  the  second  vol- 
ume shall  contain  all  the  acts  and  resolutions  of  a  private  and 
local  nature,  embracing  all  acts  granting  corporate  privileges. 

9.  A  sufficient  number  of  each  of  the  volumes  (embracing  N'™\«"''.<"'P" 

11  IT  1        •  \     I      n    1  •     ,     1   J  1  lestobepnnt- 

both  public  and  private  acts)  shall  be  prmted  to  supply  a  copy  ed,  for  mem- 
to  each  member  of  the  General  Assembly,  a  copy  to  the  offices  bers,  &c. 
of  governor,  secretary  of  State,  and  comptroller,  and  to  each 
of  the  clerks  of  the  county  courts,  superior  courts,  and  clerks 
and  masters  in  equity  of  the  several  counties  of  the  State,  and 
the  clerks  of  the  supreme  court,  one  copy  to  each  of  the  judges 
of  the  supreme  and  superior  courts,  and  to  the  attorney-gen- 
eral and  solicitors,  five  copies  to  the   State  library,  ten  copies 
to  each  of  the  libraries  of  the  senate  and  house  of  commons, 
one  copy  to  the  library  of  congress,  one  copy  to  the  governor 
of  each  of  the  States  and  Territories  of  the  United  States  — 
each  of  said  copies  to  be  bound  in  leather.     There  shall  also  Bound  in  leath- 
be  printed  an  additional  number  of  the  first  volume  of  public  Additional 
acts,  to  be  stitched,  to  furnish  one  copy  to  every  sheriff',  regis- ™™''^"""=''" 
ter,  county  solicitor,  and  to   each  justice  of  the  peace  of  the 
several  counties  of  the  State.     The  printer  shall  also   deliver 
to  the  secretary  of  State,  a  sufficient  number  of  public  docu- 
ments, (including  the  governor's  message  and  inaugural,  and 
excluding  bills,)  as  either  branch  of  the  General  Assembly  may 
order  to  be  printed,  to  furnish  two  copies  for  the  State  library, 
two  for  the  executive  olfice,  ten  to  each  of  the  libraries  of  the  ^u™ie''docu- 
senate  and   house  of  commons,  one  to   the   university  library,  ments. 
and  one  to  each  member   of   the   General  Assembly;  all  of 
which  volumes  shall  be  bound  and  distributed  along  with  the 
journals  and  acts,  as  directed  in  the  provisions  of  this  chapter. 
The  secretary  of  State   shall  record   in  a  book  kept  for  that  justices' names 
purpose,  the   names  of  all  the  justices  of  the   peace  for  the  [^"."1,'^,^',*''^°^'^'''^ 
several  counties  of  the  State  ;  and  whenever  a  vacancy  occurs,  siuto. 
it  shall  be  entered  therein,  and  the  clerks  of  the  several  county  ^,J;j',!^J„"^,r,"i5h 
courts  shall,  on  the  third  Monday  of  November,  one  thousand  lut  of  justice*. 


490 


QUARANTINE   AND    HEALTH. 


[Chap.  94. 


Blank  fornis  to 
be  printed  for 
offices  of  gov'r, 
treasurer,  &c. 


Vacancy  in  of 
fice  of  printer, 
filled  by  gov'r. 

Repealing 
clause. 
—1854,  c.  36. 


eight  hundred  and  fifty-six,  and  every  two  years  thereafter, 
furnish  the  secretary  of  State  with  a  correct  list  of  the  justices 
of  the  peace  of  their  several  counties,  and  by  this  list  shall  the 
public  laws  and  journals  be  distributed. 

10.  The  governor,  secretary  of  State,  treasurer,  comptroller, 
and  adjutant-general,  may  have  printed  for  their  several  offices, 
such  blank  forms  and  other  necessary  printing,  as  may  be  suit- 
able and  proper  to  enable  them  to  discharge  their  duties ;  and 
the  treasurer  shall  cause  to  be  printed  one  hundred  copies  of 
his  report,  for  the  use  of  his  office.  The  charges  for  which 
printing  shall  be  reasonable  and  just,  to  be  adjudged  of  and 
allowed  by  the  board  composed  of  the  governor,  secretary  of 
State,  treasurer,  and  comptroller. 

11.  Any  vacancy  occurring  in  the  office  of  public  printer, 
during  the  interval  between  the  meetings  of  the  General  As- 
sembly, shall  be  filled  by  appointment  of  the  governor. 

12.  All  laws  and  clauses  of  laws,  coming  within  the  mean- 
ing and  purview  of  this  chapter,  are  hereby  repealed. 


CHAPTER    94. 


QUARANTINE   AND   HEALTH. 


Section 

1.  Quarantine,  •when  and  by  whom  di- 

rected. Masters  and  pilots  to  report 
the  health  of  vessels.  Duty  of  those 
ordered  to  perform  quarantine.  Pen- 
alties on  masters  and  pilots. 

2.  Vessel  coming  from  infected  place,  to 

anchor  at  quarantine  ground.  Com- 
ing into  port  without  permission, 
master  or  pilot  indictable. 

3.  Such  vessel  to  be  removed. 
i.  Port  physicians  appointed. 

5.  Penalty  on  passengers  or  crew  break- 

ing quarantine. 

6.  On  person   going  on  board  without 

leave — and  on  master  allowing  it. 
Such  person  to  remain  on  board. 

7.  Person  breaking  quarantine  arrested 

and  sent  back. 

8.  Penalty  for  lauding  articles. 

9.  Afliilavit  of  health  required  of  master. 

Penaltv  for  false  statement. 


Section 

10.  Provisions  furnished  vessels,  &e. 

11.  Penalties,  how  recovered  and  applied. 

12.  Penalty  on  pilots,  bringing  in  vessels 

without  certificate,  &c. 

13.  Commissioners  of  navigation  may  ap- 

point harbor  master  and  health-offi- 
cer, and  enact  b3'-laws,  &c. 

14.  Of  seaport  towns,  where  no  commis- 

sioners of  navigation,  to  have  like 
authority. 

15.  Nuisances  in  seaports,  what  deemed 

such. 

16.  Lots  in,  kept  drained  at  certain  sea- 

sons. Penalty  for  neglect.  Com- 
missioners may  abate  nuisance  at 
owner's  expense. 

17.  Officers  of  police,  to  provide  against 

contagious  diseases. 
IS.  Hospitals  established  by  county  court, 

and  commissioners  of  towns. 
19.  Proviso  to  the  foregoing  sections. 


Quarantine,  1.    TiiE  Commissioners  of  navigation  in  the  respective  ports 

whomdlrected.  ^"^^  inlets  of  the  State,  and  where  there  arc  no  such  commis- 
sioners, any  three  justices  of  the  peace  convenient  to  said  ports 
or  inlets,  or  the  commissioners  of  any  seaport  town,  shall  meet 
together  and  appoint  such  place  or  places,  as  they  may  think 
proper,  for  vessels  to  perform  quarantine ;  and  when  a  vessel 


Chap.  94.]  quarantine  and  health.  491 

shall  arrive  at  any  of  the  said  ports  or  inlets,  having  an  infec- 
tious distemper  on  board,  or  which  came  from  any  place  that 
was,  at  the  time  of  her  sailing,  or  shortly  before,  infected  with 
any  rnalignatit  disorder,  the  master  and  pilot  of  the  vessel  shall 
anchor  her  at  the  place  so  appointed,  and  give  immediate  in-  Masters  and 
formation  thereof  to  the  commissioners  of  navigation,  or  to  the  LaUh  of "ves" 
commissioners  of  the  seaport  town ;  or,  where  there  are   no  ^'='- 
commissioners,  to  the  nearest  justice  of  the  peace,  who,  with 
two  others  to  be  summoned  by  him,  or  any  three  of  the  com- 
missioners aforesaid,  or  any  one  commissioner  and  t^vo  justices, 
or  any  one  justice  and  two   commissioners,  shall  thereupon 
cause  such  vessel  and  her  crew  to  be  examined  by  at  least  one 
experienced  physician,  when  to  be  had;  upon  whose  report  in  ' 

writing,  (which  said  physician  is  required  to  make,)  and  on 
other  information  they  may  receive,  any  three  of  such  com- 
missioners, and  where  there  are  no  commissioners,  any  three 
neighboring  justices,  or  any  one  commissioner  and  two  justices, 
or  any  one  justice  and  two  commissioners,  or  the  commission- 
ers of  the  town  to  which  such  vessel  is  bound,  may  order  and 
command  the  master  of  the  vessel,  crew,  and  passengers  to 
perform  quarantine,  as  by  them  shall  be  deemed  most  proper 
and  requisite,  to   check  or  prevent  any  infectious  distemper 
from  spreading  in  the  State;  and  every  person  on  board  such 
vessel  directed  to  perform  quarantine,  shall  from  time  to  time.  Duty  of  those 
during  such  quarantine,  obey  all  orders  given  by  the  authority  form  quarau- 
of  the  said  commissioners  or  justices,  respecting  the  victualling,  '■'"'^• 
purifying,  and  cleansing  of  such  vessel,  and  all  persons  and 
articles  on  board,  and  the  intercourse  of  the  said  persons  with 
the  inhabitants   of  the   State,   the  receiving  any  persons   on 
board,  or  the  putting  them  on  shore ;  and  if  the  pilot  or  mas- 
ter neglect  to   give  such  information  as  above  required,  the  Penalties  on 
pilot,  for  such  neglect,  shall  forfeit  and  pay  one  hundred  dol-  "tT  ninh""  m ' 
lars,  and  the  master,  for  the  like  neglect,  shall  forfeit  and  pay  duty.— r.  s.  o. 
two  hundred  dollars.     And  in  case  the  master  of  any  vessel,  so     ''  ' 
ordered  to  perform  quarantine,  shall  refuse  to  comply  with,  or 
fail  to  fulfil,  the  orders,  for  performing  quarantine  with  his  ves- 
sel as  aforesaid,  he  shall  forfeit  and  pay  two  hundred  dollars 
for  each  day  he  shall  fail  to  perform  the  quarantine ;  for  which 
forfeiture  the  property  of  the  captain,  with  the  vessel  and  cargo, 
shall  be  liable,  if  it  shall  appear  that  the  breach  of  the  order 
was  by  the  consent  of  the  owner  or  consignee  ;  but  if  the 
owner  or  consignee  did  not  consent,  then  the  master  of  such 
vessel  only  shall  be  liable. 

2.  If  any  vessel  shall  be  brought  into  the  State  from  a  place,  J|^*^«i  coming 
which  at   the  time   of  her  departure  was    infected  with   the  place,  to  an- 
yellow  fever,  smallpox,  or  other  infectious  disorder;  or  if  any  J^i','°',rround™"" 
vessel,  arriving  in  the  State,  shall  have  the  smallpox  or  yellow 
fever  or  other  infectious  disorder  on  board,  or  shall  have  had 
such  disorder  on  board  during  her  passage  to  the  State,  such 
vessel  shall  be  anchored  at  the  place  appointed  for  quarantine, 
and  there  remain,  until  permitted  to  remove  by  the  commis- 


492  QUARANTINE   AND    HEALTH.  [ChAP.    94. 

sioners  of  navigation,  or  by  the  commissioners  of  the  town  to 
Comiiisinto     which  the  vessel  is  bound,  or  by  the  justices  aforesaid;  and  if 
permTsston';"     any  such  vessel  shall  come   to  such  town,  or  into  its  harbor, 
master  or  pilot  without  permission  obtained  as  aforesaid,  the  pilot  or  master, 
S.''c?9t's-I-'^'  conducting  the  vessel,  or  ordering  or  permitting  her  to  be  con- 
ducted to  such  town  or  harbor,  shall  be  subject  to  indictment; 
and  upon  conviction  shall  be  fined  not  less  than  one  thousand 
dollars,  and  imprisoned  not  exceeding  one  year. 
Such  vessel  to       3_    'Yhe  commissioners  of  navigation,  or  the  commissioners 
B!s!^'s7,'i'r3.  of  the  town,  in  the  harbor  of  which  any  vessel  shall  have  arrived 
in  violation  of  this  chapter,  or  the  justices  as  aforesaid,  may 
use  such  force  as  shall  be  necessary  to  remove  said  vessel  to 
the   place  of  quarantine ;   their  reasonable   charge   for  which 
service  shall  be  paid  by  the  master  or  owner  of  the  vessel,  and 
may  be  recovered  of  either  of  them  before  any  jurisdiction  hav- 
ing cognizance  of  the  sum  due. 
Portphysicians      4.    The  commissioners  of  navigation  in  the  several  ports  of 
sT'96tt7.^"  the  State,  and,  where  there  are  no  such  commissioners,  the 
commissioners  of  the  several  seaport  towns,  may  appoint  port 
physicians,  and  regulate  and  prescribe  the  fees  to  which  they 
shall  be  respectively  entitled,  according  to  the  difterent  quaran- 
tine stations;  which  they  shall  be  bound  to  attend  for  the  pur- 
pose  of  inspecting  vessels,  as  required  by  this   chapter,  and 
giving  certiticates  of  their  situation  and  condition,  in  regard  to 
the  health  of  their  respective  crews  and  passengers. 
PenaltTon  5.    When  a  vessel  shall  be  directed  to  perform  quarantine, 

crew  bfeaidng  and  any  seaman  or  passenger  shall,  contrary  to  the  order  and 
.  quarantine.—"  direction  of  the  commissioners  or  justices  as  aforesaid,  leave 
ii.  S.  c.96,s.  5.  ^^^  vessel  and  land  on  any  other  place  than  they  shall  allow  of, 
every  person  so  offending  shall  forfeit  and  pay  two   hundred 
dollars  for  each  offence ;  and  when  he  shall  have  left  the  vessel 
with  the  master's  consent,  the  master  shall  pay  a  like  penalty 
of  two  hundred  dollars  for  every  such  offence  of  any  of  his 
passengers  or  seamen. 
On  person  go-       Q,    When  any  vessel  shall  be  directed  to  perform  quarantine, 
wfthTut'ieave,  and  any  person  knowing  of  such  order,  by  the  information  of 
and  on  master  -fhe  master  or  otherwise,  shall  go  on  board  of  such  vessel  with- 
permitting  it.    ^^^^  permission  of  the  commissioners  or  justices  aforesaid,  every 
such  person  shall  forfeit  and  pay  one  hundred  dollars.     And  if 
any  person  shall  be  permitted  by  the  master  to  come  on  board, 
without  informing  him  of  the  order  and  directions  of  the  com- 
missioners, or  justices  of  the  peace,  the  master  shall  forfeit  and 
pay  two  hundred  dollars  for  every  person  so  offending,  and  four 
hundred  dollars  for  suflering  any  person  so  on  board  to  depart 
his  vessel,  without  leave  of  the  commissioners  or  justices  aforc- 
Snch  person  to  g^^jj ;  and  the  said  commissioners  or  justices  are  empowered  to 
brard!— K.  S.    order  every  person  who  shall  go  on  board  any  such  vessel,  to 
c.  96, s.  6.        remain  there  for  such  length  of  time  as  they  may  think  proper; 
and  if  he  disobey  such  order,  he  shall  pay  one  hundred  dollars. 
Person  break-        7.    The  commissioners  or  justices  aforesaid,  or  a  majority  of 
arrest"ed  and™'  them,  respectively,  may  issue  their  warrant  to  any  sheriff  or 


Chap.  94.]  quarantine  and  health.  493 

other  officer,  commanding  him  to  take  the  body  of  any  person  sent  back.— R. 
that  may  have  left  any  vessel  ordered  to  ride  quarantine,  and  ^'  ''■  ^^'  '•  ''■ 
carry  him   on  board  of  said  vessel ;  and  the  said  officer  may 
summon  such  persons  to  assist  him  in  the  execution  of  the 
warrant,  as  he  may  think  fit. 

8.  If  any  master  of  a  vessel,  ordered  to  ride  quarantine,  shall  Penalty  for 
convey,  or  cause,  or  permit  to  be  conveyed,  any   article   of  irticief,-K.  s. 
goods,  wares,  and  merchandi.se  from  his  vessel  on  any  other  <^- ^'5- "• ». 
land,  or  into  any  other  boat  or  vessel,  than  the  said  commis- 
sioners or  justices  shall  authorize,  he  shall  forfeit  and  pay  two 
hundred  dollars  for  every  such  offence.     And  any  other  person 

so  conveying,  or  causing  to  be  conveyed,  any  article  as  above  ' 
mentioned,  shall  be  liable  to  the  like  penalty. 

9.  The  said  commissioners  or  justices  may,  whenever  they  Affidavit  of 
think  proper,  require  the  master  of  a  vessel,  on  his  arrival  in  ormL'er""'"* 
the  State,  to  declare  on  oath  the  state  of  the  health  of  himself, 

crew,  and  passengers,  and  of  the  place  from  whence  he  came. 
And  if  any  master  shall  give  a  false  declaration,  or  any  phy-  Penalty  for 
sician  shall  wilfully  give  a  false  certificate  of  the  health  of  the  ^enV-Ts 
persons  on  board  any  such  vessel,  he  shall  forfeit  and  pay  two  c.  96,' s.  9.' 
thousand  dollars. 

10.  The   commissioners   or    justices   are   empowered   and  Provisions  fnr- 
directed  to  furnish  any  vessel,  ordered  to  ride  quarantine,  with  &c''-!-r!s.'c.'' 
a  sufficient  quantity  of  good  wholesome  provisions,  for  the  s^.  s-  W- 
expense  of  which  the  master,  vessel,  and  cargo  shall  be  liable. 

11.  All  penalties  and  forfeitures  imposed  or  allowed  to  be  Penalties,  how 
imposed  by  this  chapter,  may  be  recovered  and  applied,  one  app°iieT-R"s. 
half  to  the  use  of  the  informer,  the  other  half  by  the  commis-  «■  '-"^^  '•  n- 
sioners  of  navigation,  for  the  use  and  benefit  of  the  navigation 

of  the  port,  within  whose  jurisdiction  the  penalty  or  forfeiture 
may  have  been  incurred. 

12.  If  any  pilot  shall  bring  any  vessel  beyond    the    place  Penalty  on 
fixed  and  limited  by  the  commissioners  of  navigation,  without  EJ'vSseiswIth? 
a  certificate  of   the  health-officer    declaring  that  there  is  no  out  certificate. 
danger  to  be  apprehended  from  any  infectious  disease  on  board  ^12  ^' '''  ^^' 
said  vessel,  such  pilot  shall  forfeit  his  branch  or  commission, 

and  from  thence  be  deemed  incapable  to  act  as  a  pilot  in  any 
port  of  the  State. 

13.  The  commissioners  of  navigation  of  the  several  seaport  Commissioners 
towns  in  the  State,  shall  have  power  to  appoint  a  harbor  mas-  "[ ™''J^''ohi" 
ter  and  health-officer  ;  to  prescribe  their  duties  and  authority  ;  So?  master 
to  make  rules  and  regulations  for  their  government ;  allow  them  ^"f  S enacT 
a  reasonable  compensation  for  their  services,  and  determine  by-ia''«-s,  &o!— 
how  such  compensation  is  to  be  paid.  And  they  shall  have  fg  ^-  "■  ^^'  '• 
power  to  pass  such  by-lavi^s,  (not  inconsistent  with  the  laws  of 

the  land,)  for  the  better  regulation  of  the  quarantine  to  be  per- 
formed by  Vessels,  arriving  from  ports  infected,  or  suspected  to 
be  infected,  with  any  infectious  disease,  and  for  preventing  all 
intercourse  between  such  vessels  and  persons  on  shore,  as  to 
them  may  seem  meet  and  proper,  and  to  enforce  obedience  to 
42 


494  QUARANTINE  AND    HEALTH.  [ChaP.    94. 

such  by-laws,  by  imposing  such  penalties  as  they  may  think 

proper. 
Of  seaport  14.    The  commissioners  of  the  several  seaport  towns,  and 

towns  where  no  ^  having  a  port  of  entry,  where  there  are  no  commission- 

cotn  r  01  nav.j  o       r  J '  i  i        • 

to  have  like      ers  of  navigation,  shall   have   the   same  power  and  authority 
s'oTo's  TZ''  ^"'^  ^^  subject  to  the  same  duties,  as  are  herein  directed  and 
prescribed  for  the  commissioners  of  navigation,  in  relation  to 
the  quarantine  of  vessels,  in  the  ports  of  their  respective  towns ; 
and  all  persons  offending  against  the  regulations  of  the  com- 
missioners of  such  towns,  shall  be  subject  to  the  same  fines, 
penalties,  and  forfeitures,  as  though  the  said  regulations  had 
been  made  by  commissioners  of  navigation. 
Nuisances  in         15.    All  ponds  of  stagnant  water,  all  cellars  and  foundations 
what  del^med''  oi  houses ;  whose  bottoms  contain  stagnant  and  putrid  water, 
such.— R.  s.     all  dead  and  putrefied  animals  lying  about  the  docks,  streets, 
0.  96,  s.  15.       lajjeg^  alleys,  vacant  lots,  or  yards,  all  privies  that   have  no 
wells  sunk  under  them,  all  slaughter-houses,  all  docks  whose 
bottoms  are  alternately  wet  and  dry  by  the  ebbing  and  flow- 
ing of  the  tide,  all  accumulation  of  filth  in  the  streets,  lanes, 
alleys,  and  gutters  thereof,  all  accumulations  of  vegetable  and 
animal  substances  undergoing  putrefactive    fermentation,   in 
any  of  the   seaport  towns  of  the    State,  are  hereby  declared 
common  nuisances,  productive  of  offensive  vapors  and  noxious 
exhalations,  the  causes  of  disease,  and  ought  to  be  restrained, 
regulated,  and  removed. 
Lots  kept  in  ig.    Every  person,  possessed  of  a  lot  in  any  seaport  town, 

drame/at'cer-'which,  from  its  low  or  sunken    situation,  is   liable  to  retain 
tain  seasons,     tide,  or  rain  water,  or  on  which  cellars  or  foundations  for  build- 
ings may  be  dug,  (whether  a  tenement  be  erected  over  the 
same  or  not,)  shall,  during  the  months  of  June,  July,  August, 
September,  and  October,  preserve  and  keep  the  said  lot,  cel- 
lars, and  foundations  dry  and  free  from  stagnant   or   putrid 
waters  and  other  filth ;  and  any  person  offending  herein  shall 
Penalty  for       forfeit  and  pay  five  dollars  for  the  use  of  the  town,  for  every 
neglect.  -week  he  shall  suffer  such  stagnant  or  putrid  water,  or  other 

filth,  to  remain  therein.  And  if  the  said  owner  shall,  notwith- 
Com'rs  may  standing  the  above  provisions,  neglect  to  remove  such  stagnant 
abate  nuisance  qj  putrid  Water  or  other  filth,  the  commissioners  of  the  town 

at  owners  ex-  •  '  ,  .       .  i 

ponse.— R.  s.    may  employ  any  person,  upon  such   terms  as  to  tnem  may 

c.  06,3.16.       seem  reasonable  and  just,  to  remove  such  filth  or  stagnant  or 

putrid  waters ;  and  the  expense  shall  be  considered  as  a  further 

fine  for  not  complying  with  the  provisions  of  tiiis  section,  and 

shall  be  collected  accordingly,  and  shall  also  be  a  lien  upon  the 

lot  upon  which  the  same  has  been  expended. 

onicersofpo-       17.    When  an  infectious  disease  shall  be  raging  in  any  part 

against  FXi^"  o^  the  State,  or  in  any  part  of  the  United  States,  the  officers 

auction  of  con-  of  policc    of   any   incorporated    town,  who    may  have  well- 

e^is"— r's     founded  apprehensions,  that  their  town  is  in  danger  of  being 

0.  96,  s.  17.  '     visited  by  such  disease,  may  take  such  precautionary  measures, 

and  provide  such  penalties  for  the  breach  of  them,  as   may 

seem  necessary  and  proper  ;  the  expense  of  which  they  are 


Chap.  95.]      quo  warranto  and  mandamu.?. 


495 


authorized  to  defray  out  of  any  money,  at  the  time,  in  their 
town  treasury ;  or,  if  that  should  not  be  in  a  situation  to  sus- 
tain the  expense,  to  borrow  such  sum  as  may  be  necessary  to 
defray  the  same,  and  afterwards  to  raise  the  amount  by  tax 
on  the  inhabitants  of  such  town,  over  and  above  the  ordinary 
taxes  levied  for  the  current  expenses  of  the  town. 

18.  The  county  court,   a    majority    of  the  justices    being  Hospitals estab- 
present,  may  establish  public  hospitals   for  the   county;   and  |,ounfy''^our( 
the   commissioners  of  every  incorporated  town  may  do    the  and  cbmmis- 
same  for  the  town  :  and  the  said  county  court,  and  the  com-  Ji°,^^  °^ 
missioners  of  such  town,  may  make  all  such  rules,  regulations, 

and  by-laws  as  they  may  deem  needful,  for  preventing  the 
spread  of  contagious  and  infectious  diseases,  and  taking  care 
of  the  afflicted,  the  same  not  being  inconsistent  with  the  laws 
of  the  State. 

19.  Nothing  contained  in  the  preceding  sections,  shall  be  Proviso  to  the 
construed  to  lessen  or  impair  the  power  and  authority  of  the  [j'onf'^l  *s*^" 
commissioners  of  the  seaport  towns,  or  the  commissioners  ofo.  96,  s.  18. 
navigation,  or  other  oificers,  under  the  quarantine  laws  of  the 

State,  to  prevent  the  introduction  of  diseases  by  vessels  arriv- 
ing at  or  near  said  seaport  towns. 


CHAPTER    95. 


QUO  WARRANTO  AND  MANDAMUS. 


Section 

1.  Informations,  in  what  cases,  and  by 

■whom,  filed.  Nature  of  proeeedings. 
In  eertain  cases,  several  rights  may 
be  tried  in  one  information.  Pleas 
filed  first  term,  unless,  &c. 

2.  Upon    conviction,    what    judgment. 

Costs  adjudged  to  party  succeed- 
ing. 


Section 

3.  Eeturn  to  be  made  to   first  manda- 

mus. 

4.  Time  given  by  court  to  make  return, 

plead,  &c. 
6.  Returns  may  be  contested:  proceed- 
ings thereon.     On  verdict  for  plain- 
tiff or  defendant,  what  consequences 
shall  follow. 


1.  Where  any  person  shall  usurp,  intrude  into,  or  unlaw-  informations, 
fully  hold  or  execute,  any  office  or  franchise,  the  attorney-gen- '"  ^'''=''  "J*'®^' 
eral  or  solicitor  for  the  State,  in  the  superior  court  of  the  county  med.  ^  ^  *"" 
within  which   the   office  is   situate   or  the   franchise  is    held 
and  exercised,  with  the  leave  of  the  court,  may  exhibit  an  in- 
formation in  the  nature  of  a  quo  toarranto,  at  the  relation  of  Nature  of  pro- 
any  persons    desiring   to   prosecute  the  same,  (who  shall  be  ccedings. 
mentioned  in  the  information  to  be  relators,)  against  such  per- 
sons so  usurping,  intruding  into,  or  unlawfully  holding  or  ex- 
ecuting said  office  or  franchise ;  and  the  court  shall  proceed 
therein,  in  such  manner  as  is  usual  in  cases  of  information  in 
the  nature  of  a  quo  laarranlo ;  and  if  it  shall  appear  to  the  in  certain 
court  that  the  several  rights  of  divers  persona  to  the  said  office  '='"^'''  *'=™''"' 


49.8  KEGisTERS.  [Chap.  96. 

registering  them ;  which   fees  the  clerk  shall  receive   for  the 
register;  and  in  case  the  clerk  shall  fail  to  deliver  such  deeds 
and  instruments  of  writing,  upon  application  as  aforesaid,  and 
to  pay  the  fees  as  aforesaid,  he  shall,  for  every  such  failure, 
forfeit  and  pay  to  the  register  one  hundred  dollars ;  for  which 
sum  judgment  shall  be  entered  by  the  succeeding  court,  upon 
motion  on  behalf  of  the  register,  and  due  notice  thereof  to  the 
clerk. 
Register  to  call      5.   The  register,  within   twenty  days   after  the  rise  of  each 
deeds'&cMn    county  court,  shall  apply  at  the  clerk's  ofHce  for  all  deeds  and 
20  days  after     other  instruments  of  writing  admitted  to  probate  for  registra- 
e!^S?c.*'96"1.~  t'°"  '  ^"''  '"  ^^^^  "^  neglect  by  either  clerk  or  register  in  per- 
6.  forming  the  duties  aforesaid,  he    shall  forfeit    and    pay  forty 

dollars  for  every  such  offence,  to  any  person  suing  for  the  same, 
and  be  further  liable  for  all  damages  which  the  person  injured 
by  such  neglect  may  sustain. 
Mortgages  and       g_  'j'l^g  register  shall  register,  forthwith  after  delivery  to  him, 
to  be  registered  all  mortgages  and  deeds  in  trust  made  to  secure  the  payment 
Th'^'^d^^ds'      °^  money  ;  and  he  shall  register  all  other  deeds  and  instruments 
fee,  within'a    delivered  to  him  for  registration,  within  one  month  after  de- 
p°naU   feme-  ^'^^''y  ^^  ^^^  same  :  and  in  case  of  his  failure  so  to  do,  he  shall, 
gleet.— R.  S.  c.  for  every  such  offence,  forfeit  and  pay  to  any  person,  who  will 
1^' ' 98^s~?     ^"^  ^^^  ^^"^   same,  one  hundred   dollars,  and  moreover  pay  to 
any  person  injured  by  the  delay,  all  such  damages  as  he  may 
sustain  thereby. 
To  keep  al-  7.  The  register  shall  keep  in  his  office,  in  files  alphabetically 

of  deed's 'and*'*  ^^.belled,  all  original  instruments  delivered  to  him  for  registra- 
deiiver,  &c.      tion,  and  on  application  for  such  originals  by  any  person  en- 
titled to  their  custody,  he  shall  deliver  them. 
Office  kept  s.  The  register  shall  keep  his  office,  with  all  the  books  and 

■where justices  iu  f      i  i       i  ■      -^        c  j.i       ■      j.- 

shall  direct.      papers  thereof,  at  such  place  as  a  majority  of  the  justices  may 
prescribe,  which  shall  be  at  the  court  house  of  his  county,  or 
Days  of  attend-  within  one  mile  thereof.     And  the  said  justices  may,  in  their 
fixed.— T840,  c.  discretion,  from  time  to  time,  prescribe  by  order,  to  be  entered 
85;  1844,0.      on  the  records  of  their  court  and  notified  to  the  register,  on 
what  days  of  each  week,  and  at  what  hours  of  each  day  he 
shall  attend  in  his  office  by  deputy  or  in  person :  and  the  reg- 
ister shall  give  his  attendance  accordingly. 
Pennity  for  9.  Jf  any  register  shall  wilfully  violate  any  of  the  duties  pre- 

duties  8100,  scribed  in  this  chapter,  he  shall  forfeit  and  pay  to  the  chairman 
and  misd'r.—  of  the  court,  for  the  use  of  the  county,  one  hundred  dollars,  to 
».— 1840,  0.35 i  be  recovered  against  him  and  the  sureties  of  his  official  bond 
1844,  c.  68.  by  action  on  his  bond,  and  shall  moreover  be  deemed  guilty  of 
a  misdemeanor  in  office,  and  on  conviction,  shall  be  removed 
from  office. 
County  courts       JQ.  The  courts  of  plcas  and  quarter-sessions  may  employ 

may  have  reg-         ..     •  i  ,       ,      '  .,  ?   •      ,  i       r  ji  •    ^     t 

istcr's  books  suitable  persons  to  transcribe  and  index  such  of  the  registers 
trnnscribed  or  boolvs,  in  thcir  respective  counties,  as  from  decay  or  other 
Indexed.  .  '  •        ^       i       ^  -I     j  .     i         i  i   xu 

cause,  may   require    to    be   transcribed,  or  indexed  ;    and  the 

books,  when  so  transcribed  and  approved  by  the  courts  respec- 
tively, shall  be  deemed  and  taken  as  public  records ;  and  shall 


Chap.  97.] 


EELIGIOUS   SOCIETIES. 


499 


be  deemed  and  taken,  to  all  intents,  and  for  every  purpose,  the  Deemed  origi- 
origuial  books ;  and  copies  therefrom  shall  be  certified  accord-  Jurors  correct 
ingly.     Provided,  however,  that  the  court   may  at  any  time  ed.— n.  s.  o. 
correct  any  error  in  the  transcription  of  the  same.  ®^'''  ■'''• 

11.  Whenever  upon  the  determination,  for  whatever  cause,  County  conrt 
of  the  term  of  office  of  any  register,  it  shall  appear  that  he  has  fmned  omitted 
failed  to  perform  any  of  the  duties  of  his  office,  the  court  shall  duties,  &c.— 
cause  the  same  to  be  performed  by  another  person,  who  shall     *^'  °-    >  *■   • 
receive  for  his  compensation  the  fees  allowed  for  such  services  ; 

and  such  portion  as  shall  be  paid  by  the  county,  may  be  re- 
covered back  by  the  county,  by  suit  on  his  official  bond. 

12.  Every  county  court,  without  delay,  and  at  the  expense  County  conrt 
of  the  county,  shall  cause  to  be  made  and  consolidated  in  one  matiege^rai 
book,  a  general  index  of  all  the  deeds  and  other  documents  index  of  logis- 
registered  in  the  office  of  register ;  and  after  the  same  shall  be 

done,  the  register  shall  keep  up  such  index  without  any  addi- 
tional compensation. 


CHAPTEE    97, 


RELIGIOUS   SOCIETIES. 


Section 

1.  Donations  to  religions  societies,  to  vest 

in  them  or  their  trustees. 

2.  Houses  of  worship  on  vacant  land,  to 

belong  to  the  society,  &c. 
8.  Societies  may  appoint  trustees  to  hold 
their    property.      Yearly    value    of 
lands,  a  church  or  society  may  hold. 

4.  Trustees  may  be  removed,  &c.    To 

be  accountable. 

5.  Penalty  for  stopping  way  to  places  of 

worship,  springs,  &c. 


Section 

6.  Stud  horses,  curiosities,  &c.,  not  to  be 

exhibited  in  half  a  mile  of  congrega- 
tion.   Exception  as  to  towns,  &o. 

7.  Sale  of  liquor   and   goods,   within  a 

mile,   forbidden.     Exception.     Pen- 
alty. 

8.  Penalty  for  intoxication  or  disorder 

during  worship. 

9.  Penalties  under  this  chapter  to  be  for 

the  poor. 


1.    All  glebes,  lands,  and  tenements,  heretofore  purchased,  Donations  to 

1       •       1   /■       J.I  if  i-       1  •     ■    i_  religious  soci- 

given,  or  devised  tor  the  support  ot  any  particular  mmistry,  or  eties,  to  vest  i» 
mode  of  worship;  and  all  churches,  and  other  houses  built  for  them  or  their 
the  purpose  of  public  worship  ;  and  all  lands  and  donations  of  c.  89,  s.  i,  6. 
any  kind  of  property  or  estate  that  have  been  or  may  be  given, 
granted,  or  devised  to  any  church  or  religious  denomination, 
religious  society  or  congregation  within  the  State,  for  their  re- 
spective use,  shall  be  and  remain  forever  to  the  use  and  occu- 
pancy of  that  church  or  denomination,  society,  or  congregation, 
for  which  the  said  glebes,  lands,  tenements,  property,  and  estate 
were  so  purchased,  given,  granted,  or  devised,  or  for  which  the 
said  churches,  chapels,  or  other  houses  of  public  worship  were 
built;  and  the  estate  therein  shall  be  deemed  and  held  to  be 
absolutely  vested,  as  between  the  parties  thereto,  in  the  trus- 


500-  RELIGIOUS   SOCIETIES.  [ChAP.   97. 

tees  respectively  of  the  said  churches,  denominations,  societies, 
and   congregations,  for  their  several  use,  according  to  the  in- 
tent expressed  in  the  conveyance,  gift,  grant,  or  will :  and  in 
case    there  shall   be   no  trustees,  then    in    the   said  churches, 
denominations,  societies,  and  congregations,  respectively,  ac- 
cording to  such  intent- 
Houses  of  wor-      2.    All  houses  and  edifices,  erected  for  public  religious  wor- 
kDd,  to  bebng  ^*^iP   °"  vacant  lands,  or  on  lands  of  the  State  not  for  other 
to  society         purposes  intended   or  appropriated,  together  with   two  acres 
-R.'s°c'.'9V.  adjoining  the  same,  shall  hereafter  be  held  and  kept  sacred  for 
2-  divine  worship,  to  and  for  the  use  of  the  society  by  which  the 

same  was  originally  established, 
^temayap-'"   •  ^'    '^^^  conference,    synod,  convention,    or  other  ecclesias- 
point  trustees    tical  body,  representing  any  church  or  religious  denomination 
p°rop°'rty''^'^     within  the  State,  as  also  the  religious  societies  and  congrega- 
tions within  the   State,  may  from  time  to  time  and  at  any 
time,  appoint  in   such  manner  as  such  body,  society,  or  con- 
gregation may  deem  proper,  a  suitable  number  of  persons  as 
trustees  for  such  church,   denomination,  religious  society,  or 
congregation,  who   and  their  successors  shall  have  power  to 
receive  donations,   and  to   purchase,  take,  and  hold  property, 
real  and  personal,  in  trust  for  such  church  or  denomination. 
Yearly  value    religious  society,  or  congregation.     Provided,  however,  that, 
church  or  soci-  besides  such  lands  and  lots  as  may  be  specially  set  apart  and 
ety  may  hold,    appropriated  to  divine  worship,  no  church  or  denomination  by 
s'-isM^c.^V;  ^"'^"^^  °^  ^^'^^  chapter,  shall  have  to  their  own  use  lands  of  a 
ms,  c.  76.     '  greater  yearly  value  than  six  thousand  dollars  ;  and  no  single 
congregation  or  society,  lands  of  a  greater  yearly  value  than 
four  hundred  dollars;  and  said- lands  shall  be  subject  to  taxa- 
tion. 

be  removrd7        '^'    '^^^  ^°'^J  appointing  may  remove  such  trustees  or  any 

&c.  '      of  them,  and  fill  all  vacancies  caused  by  death  or  otherwise  ; 

and  the  said  trustees  and  their  successors'may  sue  and  be  sued 

in  all  proper  actions,  for  or  on  account  of  the  donations  and 

property  so  held  or  claimed  by  them,  and  for  and  on  account 

To  be  account-  of  any  matter  relating  thereto.     And  they  shall  be  account- 

ntlfs.-  "■  ^^^^  ^?  ^^^  ^'^^'^  churches,  denominations,  societies,  and  con- 

1844,  c'  47.       gregations  for  the  use  and  management  of  said  property,  and 

shall  surrender  it  to  any  person  authorized  to  demand  it. 
s^toppi'^cr  way        ^"    ^^  ^"y  person  shall  maliciously  stop  up  or  obstruct  the 
to  places  of      way  leading  to  any  place  of  public  worship,  or  to  any  spring 
rpriugs''&c-  °^  ^^'''"  commonly  used  by  the   congregation,   he    shall,   for 
E.  s.  c.'sg,  s.  7.  every  such  otlence,  forfeit  and  pay  twenty  dollars. 
Stud-horses,  6.    If  any  person  shall  bring  within  half  a  mile  of  any  place 

isitieTrfottobe^^^'"*^  the  people  are  assembled  for  Divine  worship,  and  stop 


exhibited  in      for  exhibition,  any  stud-horse  or  jackass  ;  or  shall  bring,  within 
congregation,    that  distance,  any__natural  or  artificial  curiosities,  and  there  ex- 


half  a  mile  of 


Exception  as  to  hibit  them,  he  shall  forfeit  and  pay  to  any  one  who  will  war- 
K.Xc.M.'Ts. '■a'l*.^'^'^'"'-^"'''  tl'e  sum  of  twenty  dollars.  Provided,  that 
nothing  herein  contained  shall  be  construed  to  prohibit  such 
exhibitions  at  any  time,  if  made   within   the   limits  of   any 


Chap.  98.] 


501 


incorporated  town;  or  without  such  limits,  if  made  before  the 
hour  of  ten  o'clock  in  the  forenoon,  or  after  three  o'clock  in 
the  afternoon. 

7.  No  person,  licensed  keepers  of  taverns  and  retailers  ex-  Saieofiiqnor 
cepted,  (and  they  only  when  they  shall  sell  at  their  taverns  or  f"tf°no'7or-''" 
shops,)  during  the  progress  of  religious  exercises,  at  any  place  bidden. 
w^ere  Divine  service  may  be  then  celebrated,  shall  sell  within  penaky!'— R. 
one  mile  of  such  place,  any  spirituous  liquor,  or  any  liquor  of  S.  c.  99,  s.  9, 
which    spirituous   liquor    shall    be    a   chief  ingredient.      Nor     ' 

shall  any  person,  the  keepers  of  licensed  stores  only  excepted, 
during  such  time  and  within  that  distance  of  such  place,  be 
engaged  in  the  occupation  of  selling  or-  offering  to  sell  any 
article  of  traffic,  prepared  food  and  provender  only  excepted. 
And  if  any  person  shall  offend  against  this  or  the  preceding 
section,  he  shall  forfeit  and  pay,  to  any  one  who  will  warrant 
therefor,  twenty  dollars. 

8.  If  any  person  shall  be  intoxicated,  or  shall  quarrel,  fight,  P^^lty  for  in- 
or  be  guilty  of  any  other  disorderly  behavior,  at  a  church  or  disorder  during 
other  place  appointed  for  Divine  worship,  during  the  time  the  g^^^'gl''"?; 
people  shall  be  there  assembled  for  such  worship,  he  shall,  for 

each  offence,  forfeit  and  pay  twenty  dollars. 

9.  The  penalties  incurred  for  offences  created  by  this  chap-  Penalties nnder 
ter  shall  be  for  the  use  of  the  poor  of  the  county,  if  not  other-  the  poo^r^— R.""^ 
wise  provided :  and,  on  information  thereof  before  any  justice  S-  c.  99,  s.  12, 
of  the  peace  of  the  county  wherein  they  may  be  committed, 

he  shall  issue  a  warrant  against  the  offender  for  the  penalty 
incurred ;  and  if  there  shall  be  an  appeal  from  the  judgment 
thereon,  the  case  shall  be  prosecuted  by  the  proper  officer  of 
the  State. 


Sect.  3.   7  Ire.  44.    Deed  on  unlawful  trust,  1  Dev.  189.    Bequests,  good  when,  6  Ire. 
Eq.  3S0,  4  lb.  19. 


CHAPTER    98. 


REPLEVIN. 


Section 

1.  Action  of  replevin  for  slaves  and  other 

chattels,  under  certain  rules. 
(1.)  Plaintiff  to  make  affidavit. 
(2.)  Clei-lt  shall  describe  property  and 

its  value  in  the  writ,  and  take  bond 

of  plaintiff. 

2.  Duty  of  sheriff  executing  writ.    Shall 

deliver  property  to  plaintiff,  unless 
defendant  give  bond. 


Section 

3.  Wliat  judgment  if  plaintiff  recovers, 

the  property  having  remained  with 
him.  What  judgment  if  defendant 
recovers. 

4.  What  judgment  where  plaintiff  recov- 

ers, the  property  having  remained 
with  defendant.  What  judgment,  if 
plaintiff  fails. 


1.    Writs  of  replevin  for  slaves  and  other  personal  chattels  Action  of  re- 
may  be  maintained  against  persons  in  possession  thereof,  in  Slaves  and  oth- 


502  REPLEVIN.  [Chap.  98. 

der'cena&"""  ^"  't^^''^  "'  "^''^^^^  "^^'^"^  ^^  detinue  or  trover  will  lie,  except 
rules.  against  persons  holding  the  same  in  custody  of  the  law,  under 

the  following  rules  and  regulations  :  — 
m^fUvit    ,     (^-^   '^'^^  Plaintitt;  or  his  agent  shaU  make  oath  before  the 
&c.  clerk  at  the  issuing  of  the  writ,  that  within  three  years  next 

preceding  that  time,  he  hath  been  in  the  lawful  possession  of 
the  property  detained,  that  he  has  been  deprived  of  the  pos- 
session thereof  without  his  permission  or  consent,  or  unjustly 
and  by  fraud,  and  shall  state  the  value  and  description  of  each 
slave  and  article  of  other  property,  as  nearly  as  he  can. 
describe  prop      •     ^'^'^-  '^^^  '^^'^^  ^'^^"  describe  in  the  writ  each  slave  and  ar- 
ertyandftsTai-*^'^^*^  °f  property  demanded,  and  shall  annex  to  each  slave  and 
and"takeb7nd'  ^^^^^^^  ^°  described  double  the  sworn  value  thereof,  and  shall 
of  plaintiff.—    ^^^^  of  the  plaintiff' a  bond  with  good  security,  in  double  the 
E.^S.^c.  101,  s.  alleged  value  of  the  property  demanded,  payable  to  the  de- 
fendant  and  conditioned  to  perform  the  final  judgment  on  the 
writ. 

?."e^u?ingtrif  ,  2.    The  Sheriff-  or  other  officer,  to  whom  the  writ  may  be 
Shall  deliver,    delivered,  shall  forthwith   take  into  his  custody  the  property 
^Eitfl  unless  demanded,  and  deliver  it  to  the   plaintiff"  or  his   agent.     Pro- 
defendaLt  give  vided  aliuays,  that  if  the  defendant  will  execute  and  deliver  to 
c.''iOM.^4.^'    *^*^  sheriff"  a  bond  with  good  security,  in  double  the  amount  of 
the  sworn  value  of  the  property  demanded  in  the  writ,  paya- 
ble to  the  plaintiff",  and  conditioned  to  perform  the  final  judc. 
ment  which  shall  be  rendered  in  the  case,  the  said  property 
shall  be  allowed  to  remain  with  the  defendant,  and  the  sheriff" 
or  other  officer  shall  return  the  matter  and  bond,  along  with 
the  writ,  to  the  court  whence  the  process  was  issued. 
iY^a!ii"t?if?e!°'      J    ^  ^^"^  property  shall  have  been  delivered  to  the  plaintiff", 
covers,  the       and  on  the   trial  of  the  action  he  shall  recover,  he  shall  have 
fp^remaiued"   J"'^/r"ent  for  his  costs  and  the  damages  assessed  for  the  taking 
wfth  him.         and  detention  ;  but  if  he  shall  fail  to  recover,  or  be  nonsuited, 
Sifdf:      or  verdict  be  rendered  for  the  defendant,  the  court  shall  forth- 
fenda'nt  recov-  With  direct  an  inquiry  of  the  value  of  the  property,  and  the 
wiVf-' "■  damages  sustained  by  the  defendant  by  the  detention  of  his 
1838,  c.  35.       property;  and  judgment  shall  be  rendered  against  the  plain- 
tiff  and  his  sureties  for  the  penalty  of  his  bond,  which  may  be 
discharged  on  surrender  of  the  property  and  payment  of  the 
damages  and  costs. 
S' whfre         ^'   ^^^*  ^^  ^^'^  property  shall  have  remained  with  the  defend- 
piaintiff  recov-  a"t)  by  reason   of  his  having  given   bond  with  security,  and 
iTavirT'''^  plaintiff  on  the  trial  shall  recover,  the  jury  shall  assess  the 

maTned  w'ith     ^^lue  of  the  property,   as  likewise  the  damage  for  its  deten- 
defendant.        tion,  or  for  its  caption  and  detention  ;   and  the  plaintiff"  shall 
recover  against  the  defendant  and  his  sureties  the  penalty  of 
his  bond  and  costs  of  suit,  which  may  be  discharged  by  sur- 
render of  the  property  and  payment  of  the  damages  and  costs. 
S*if  nf."i„     ^"'^  '^'  !"  *'"'  ""^'^  ^'^'^  plaintiff  shall  fail,  the  defendant  shall 
tiff  fails. -K.   recover  his  costs  against  the  plaintiff"  and  the  sureties  of  his 
S.  c.  101,  s.  4.    bond. 

Sect.  1.  Pleading  and  verdict,  6  Ire.  38.     Suil  by  tenant  of  life-estate,  5  Ire.  19i. 


Chap.  99.] 


503 


CHAPTER    99, 


KE  VENUE. 


Sectiou 

1.  Property  and  persons  taxed.   Property 

exempt. 

2.  Tax  on  real  estate. 

3.  Tax  on  i-eal  estate,  a  lien. 

i.  Tax  on  poll.  On  slaves,  paid  by 
owner.  In  what  case  hirer  shall  pay. 
Whom  court  may  exempt  from  poll- 
tax. 

5.  On    turnpike    toll-gates.      On    gates 

across  highways. 

6.  On  stud-horses  and  jackasses.    To  be 

paid  in  advance  by  non-residents. 
T.  On  real  estate  of  §300  value,  and  per- 
sonal of  S200,  descending,  devised, 
bequeathed,  or  distributable,  to,  or 
among  collateral  kindred. 

(1.)  First  class,  one  per  cent. 

(2.)  Second  class,  two  per  cent. 

(3.)  Third  class,  three  per  cent.   Cer- 
tain persons  exempt  from  the  tax. 

8.  Tax  on  personalty,  and  surplus  of  land 

sales  retained  by  executor,  &c.,  and 
paid  to  clerk. 

9.  Eemedy  against,  for  failing  to  pay  it 

over. 

10.  Value  of  personal  estate,  how  ascer- 

tained. 

11.  Executor,  &c.,  to  report  to  clerk  an  ac- 

count of  the  real  estate.    Its  value, 
how  ascertained. 

12.  Heir  or  devisee  failing  to  pay  tax 

in  six  months   after  report,  to  be 
sued. 

13.  Clerk  to  keep  a  record  of  such  taxes; 

to  return  a  list  to  comptroller,  and 
pay  them  to  sheriff. 

14.  Commissioners  appointed  by  governor 

to  enforce  collection  of  such  tax. 

15.  Estates  subject  to  tax  not  to  bo  set- 

tled without  administration,  under 
penalty  of  $500. 

16.  When    no    administration    in    three 

months,  clerk  to  administer. 

17.  Duty  of  commissioners.   Commission- 

ers to  sue  defaulting  clerks  for  penal- 
ties, &c. 

18.  Conveyances  in  fraud  of  such  tax, 

void. 

19.  Tax  on  all  interest  exceeding  six  dol- 

lars. 


Section 

20.  On  dividends  or  profits  exceeding  six 

dollars. 

21.  Taxable  sum  of  interest  and  diridends, 

how  ascertained. 

22.  On  money   employed   in  trading  in 

slaves,  and  other  kinds  of  trade. 

23.  Sulkies,  buggies,  and  other  pleasure 

vehicles  of  S50  value,  and  up- 
wards. 

(2.)  Plate,  jewelry,  and  watches. 
(3.)  Musical  instruments. 
(4.)  Certain  arms,  if  at  any  time  used 
during  the  year. 
(5.)  Retailers. 
(6.)  Tavern-keepers. 
(7.)  Billiard  tables. 
(8.)  Bowling-alleys. 
(9.)  Livery-stables. 
(10.)  Playing  cards.     Seller  to  state 

the  number. 
(11.)  Peddlers  of  patent  medicines,  ra- 

Eor-etraps,  &c. 
(12.)  Mortgages,  trust-deeds,  and  mar- 
riage contracts.  Register  to  receive 
and  account  for  tax.  To  list  the 
number  of  deeds,  &c.,  under  penalty 
ofSlOO. 
(13.)  Tax  on  marriage  licenses.   Clerk 

to  receive  and  list. 
(14.)  Tax  on  ret,ailers,  billiards,  and 
bowling-alleys  to  be  paid  to  sheriff, 
in  advance. 

24.  Merchants,  merchant-tailors,  and  jew- 

ellers. Dealers  in  liquors,  wines,  or 
cordials.  Drugs,  medicines, &c., nos- 
trums of  non-residents ;  commission 
merchants;  auctioneers.  Capital  and 
commissions  of  merchants,  how  esti- 
mated for  tax.  Distillers  of  turpen- 
tine. 

25.  Bonds,   &c.,  of  merchants,   &c.,  not 

deemed  stock. 

26.  Merchants,  &c.,  to  apply  for  license  on 

first  of  April. 

27.  Such  as  open  stores  afterwards,  how 

to  obtain  license. 

28.  Merchant  selling  without,  to  pay  addi- 
tional tax  of  §100  to  sheriff. 

29.  On    peddlers  of    carriages,   Sec,    not 

made   in   the    State,  $30    in    each 


504 


[CiLvp.  99. 


Section 

county.  On  horses  brought  into  the 
State  for  sale. 

30.  On  persons  keeping  a  fixed  establish- 

ment for  sale  of  such  articles;  un- 
less sold  where  made. 

31.  Selling,  or  ofl'eriiig  to  sell  by  sample. 

32.  License  under  three  precedmg  sec- 

tions obtained  on  paying  the  tax. 
Two  not  to  peddle  under  one  li- 
cense. 

33.  Double  tax  for  violating  the  four  pre- 

ceding sections. 

34.  On  peddlers  of  other  articles  not  ob- 

taining license,  SlOO  a  year,  for  each 
county. 

35.  On  peddlers  obtaining  license,  $30  for 

each  countj'. 

36.  Proviso  {1.)  As  to  south  side  of  Albe- 

marle sound,  &o. 

(2.)  As  to  peddling  live-stock,  vege- 
tables, iSrc. 

(3.)  As  to  books,  &o. 

(4.)  Two  not  to  peddle  under  one  M- 
cense. 

(5.)  Shall  pay  duties  on  auction  sales. 

(6.)  Deemed  peddlers  though  they  pro- 
cure houses  temporarily. 

37.  On  brokers,  $100  a  year. 
!8.  And  S200,  if  not  paid  down. 

39.  On  all  receivers  of  salaries  and  fees, 

of  S500  yearly  value. 

40.  On  license  to  attorneys.    How  dis- 

posed of. 

41.  On  insurance  companies.  Agencies  of 

banks  incorporated  out  of  the  State. 
Double  tax  on  failure  to  pay. 

42.  On  circus  riders,  menageries,  &c.,  ex- 

hibited for  reward,  SBC  for  each 
county. 

43.  On  stage-players,  jugglers,  rope  danc- 

ers, exhibiters  for  reward  of  curiosi- 
ties. 

44.  On  singers,  serenaders,  and  players 

on  musical  instruments  for  reward. 

45.  Tax  imposed  in  sections  42,  43,  44,  to 

be  paid  in  advance,  or  doubled. 
SheritF  to  specify  count}',  &o.,  for 
which  tax  is  paid. 

46.  Peddlers,  and  persons  allowed  to  ex- 

hibit, to  show  tax  receipt  to  justices 
and  constables. 

47.  Penalty  for  refusing,  and  proceedings 

to  enforce  it. 

48.  Members  of  family,  and  free  negro 

tenants,  by  wliom  listed. 

49.  What  subjects  listed  for  tax. 

60.  Tax  lists  to  refer  to  first  of  April. 
Persons,  coming  of  age  after  that 
d  ay,  may  pay  tax  and  vote. 


Skction 

51.  Lists  of  dece.ised  and  disabled  persons, 

and  others,  by  whom  given  in. 

52.  Lands  divided  after  valuation,   how 

valued  and  listed. 
63.  List-takers  for  each  district  appointed 
by  court  held  after  first   of  April. 
Their  names  and  districts  advertised 
during  term. 

54.  On  failure  to  appoint,  three  justices 

may  before  July. 

55.  List-takers  to  be  notified  in  ten  days; 

and  advertise  for  ten  days,  the  places 
and  times  of  t.iking  lists. 

56.  Sections  69  and  66  to  be  copied  into 

notice  to  list-taker.     His  duty. 

57.  If  list-taker  die,  justices   to  appoint 

another. 

58.  Inhabitants  to  attend  and  give  their 

lists.  List-takers  to  read  over  the 
subjects  of  taxation,  and  administer 
an  oath. 

59.  Penalty  for  failing  to  administer  oath. 

Proviso  for  females,  infirm  and  ab- 
sent persons. 

60.  County  in  which  taxables  shall   b« 

listed. 

61.  Persona  failing  to  list,  to  pay  double 

tax. 

62.  Sherifi'  discovering  Land  not  assessed, 

to  report  it  to  court.  Proceedings 
thereon. 

63.  Persons  hsting  taxables  refusing  to 

take  oath,  guilty  of  a  misdemeanor. 
To  be  committed  and  indicted. 

64.  Sheriff  to  inform  prosecuting  ofilcer 

of  frauds  on  the  revenue.    Duty  of 
officer. 
66.  Forms  of  tax  lists  prepared  by  treasu- 
rer, and  sent  to  clerks. 

66.  Mode  of  entering  taxables  on  lists. 

67.  List-takers  or    assessors   refusing  to 

act,  guilty  of  misdemeanor. 

68.  Lists  returned  to  be  recorded  by  clerk 

and  set  up  in  court  liouse. 

69.  Abstracts  of  lists  of  all  taxes  sent  to 

comptroller  before  first  of  April. 
What  set  forth  in  abstracts.  Print- 
ed fonns  furnished  by  comptroller. 

70.  Penalty  on  clerk  for  failing  to  send 

abstracts. 

71.  County  court  up  to  March,  may  re- 

ceive tax  lists. 

72.  Board  of  valuation  appointed  every 

five  years,  to  value  real  estate.  For 
Wilmington  every  two  years. 

73.  Mode    of   assessing    value,  fisheries, 

mines,  &c.,  considered  in  valuation. 
Lands  in  several  districts,  where 
valued.    Affidavit  of  board. 


Chap.  99.] 


505 


Section 

74.  Owner  to  furnish  a  list  of  his  real  es- 

tate for  valuation. 

75.  When  number  of  acres  is  unknown, 

board  shall  order  survey  at  owner's 
cost. 

76.  Valuation    too    high,    how   reduced. 

How  advanced,  when  incre.ised  by 
mines,  &c. 

77.  Overcharge  ofpoll,&c.,  how  corrected 

78.  Pay  of  board. 

79.  Allowance  to  clerk. 

80.  Double  tax  may  be  released  by  coun- 

ty court.    In  what  cases. 

81.  Tax  lists  delivered  by  clerk  to  sheriff 

by  April.  Form  and  contents  of 
lists.     Penalty  for  omission. 

82.  Tax  collectors  to  be  sworn. 

83.  If  sheriff  die,  his  sureties  may  collect 

taxes. 

84.  Sheriff  allowed  one  year  after  first  of 

October  to  collect. 

85.  Shall  collect  double  tax  on  unlisted 

property.  If  not  assessed,  what  to 
be  deemed  its  value. 

86.  Sheriff  on  receiving  tax  lists  to  adver- 

tise them,  &o. 

87.  May  distrain  for  tax. 

88.  Tax  of  persons  about  to  remove,  to  be 

collected  forthwith. 

89.  Of  solvent  persons,  having  no  property 

in  the  county,  collected  by  execution. 

90.  Sales    of   personalty  for  taxes,  how 

made. 

91.  Sales  of  land,  how  conducted. 
(1.)  Sheriff  to  return  to  court  a  list  of 

lands,  &c.  To  be  read  aloud,  re- 
corded, and  put  up  in  court  house. 

(2.)  Land-owners  notified,  how.  De- 
scription of  land  to  be  given. 

(3.)  To  be  sold  iu  two  terms  after  re- 
turned— where. 

(4.)  Whole  tract  to  be  put  up.  Who 
deemed  the  buyer. 

(5.)  Sale  returned  at  the  second  term, 
&o.     Proceedings  on  return. 

92.  Lands  of  infants,  Sec,  not  to  be  sold. 

Wlien  held  jointly  with  such  per- 
sons, how  to  be  sold.  Proceedings 
to  get  title  iu  such  case. 

93.  Lands  may  be  redeemed  in  one  year. 

Mode  of  proceeding. 

94.  Purchaser  to  select  and  lay  off  quan- 

tity bought  iu  a  compact  body,  &c. 

95.  Laudtobesurveyed  inayearaftertime 

of  redeeming.     By  whom  surveyed. 

96.  Deed  to  be  made  by  sheriff. 

97.  Proceedings,   when  another  conveys 

than  the  sheriff  who  sold. 

43 


Section 

98.  Purchaser  to  pay  certain  back  ta.x. 

99.  Penalty  on  sheriffs  and  clerks  omitting 

duties  prescribed  in  sections  90  and 
91. 

100.  Penalty  on  county  surveyor  failing  to 

survey. 

101.  State  deemed  buyer,  if  none  bid  less 

than  the  whole  tract.  Sheriff  to  re- 
port to  county  court.  Proceedings 
thereon. 

102.  Copies  of  report   to  be  certified  by 

clerk  for  comptroller  and  secretary. 
Proceedings  thereupon. 

103.  Sheriff  failing  to  report  sale,  or  de- 

posit copy  with  secretary,  to  be 
charged  with  $2,000. 

104.  Lands  bid  off  by  State  may  be  re- 

deemed ;  on  what  terms. 

105.  Decined  vacant,  and  subject  to  entry. 

106.  On  sheriff's  death,  &c.,  his  sureties 

may  report  sales,  &c. 

107.  Sheriff  and  all  tax-receivers  to  settle 

yearly  with  comptroller,  between 
June  and  October.  Comptroller  to 
report  to  treasurer  amount  due  from 
each. 
103.  Sheriff  to  render  to  comptroller  tho 
amount  of  each  kind  of  tax.  A  copy 
certified  by  comptroller,  to  be  de- 
posited with  the  clerk.  What  sher- 
ifts  to  be  charged  with. 

109.  With   what  credited.    Tax  on   land 

bought  by  State,  &c.  Insolvents  al- 
lowed by  court. 

110.  List  of  money  received  by  sheriff  from 

clerk,  and  on  iinlisted  taxables,  to 
be  returned  to  the  county  court  next 
before  October. 

111.  What  the  Ust  to  set  forth.  To  be  read, 

recorded,  set  up,  and  laid  before 
grand-jury. 

112.  In  certain  cases  list  filed  with  clerk  in 

vacation. 
110.  Sheriff  to  deliver  a  copy  to  comp- 
troller, or  be  charged  with  §1,000. 

114.  Penalty  on  clerk  for  violating  sections 

107,  108,  109. 

115.  Register,  or  clerk  failing  to  settle  taxes 

with  sheriff,  to  be  sued. 

116.  Insolvent  tnxaWes,  in  what  case  al- 

lowed by  court. 

117.  Penalty  on  sheriff  returning  false  fists 

of  insolvents.  On  clerk  failing  to  re- 
cord and  set  up  lists. 

118.  Oath  of  sheriff',  on  settling  with  comp- 

troller. 

119.  Comptroller  suspecting  fniuds,   &c., 

about  the  revenue,  to  inform,  &c. 


506 


[Chap.  99. 


Section 

120.  Commissions  allowed  sheriff  ou  settle- 

ment. 

121.  Further  compensation. 

122.  Sheriff  failing  to  settle,  comptroller  to 

report  his  account.  How  to  be 
stated.  Treasurer  to  take  judgment 
against  him  and  sureties. 

123.  Clerk  to  furnish  comptroller  with  cer- 

tified copies  of  sheriffs'  bonds,  un- 
der penalty  of  51,000. 

124.  Register  to  furnish  comptroller  with  a 

certified  copy  of  clerk's  bond,  under 

penalty  of  $1,000. 
126.  In  suits   against    sheriffs    or  clerks, 

such  copies  to  be  evidence. 
126.  If  register  fail  to  transmit  a  copy, 

how  comptroller  to  proceed. 


Section 

127.  Penalties  on  clerks  and  sheriffs  for 

defaults  not  specially  provided  for. 
Penalties  recovered  by  treasurer  on 
motion. 

128.  Certificate  of  treasurer  or  comptroller, 

and  copies  of  papers  in  office,  to  be 
evidence. 

129.  Debts  due  the  State  recovered  on  mo- 

tion. 

130.  Sheriffs'   receipts  to  state  separately 

the  sums  of  State  and  county  tax. 

131.  Tax  on  profits  of  Deep  River  Naviga- 

tion Company,  to  be  a  sinking  fund. 

132.  Tax  on  coal  shipped,  to  be  a  part  of 

such  fund. 


Property  and        1.  The  following  taxes  shall  be  annually  collected  and  paid 
persons  taxed.  ^^  ^j^g  citizens  and  other  persons,  and  by  owners  of  property 
situate  in  the  State,  besides  the  taxes  which  by  any  other  law 
may  be  imposed  on  them ;  unless  the  property  in  this  chapter 
described  shall  be   expressly  exempt  from  taxation  by  this  or 
Property  ex-     some  other  law.     The  property  and  estate  hereby  exempted 
empt  from  tax-  from  taxation,  are  all  such  and  their  profits  as  may  belong  to 
"  the  State,  or  may  belong  to,  or  be  set  apart  for  the  university 
and  colleges,  institutes,  academies,  and  schools  for  the  educa- 
tion of  youth,  or  the  support  of  the  poor  or  afflicted,  or  spe- 
cially set  apart  for  and  appropriated  to  divine  worship. 
Tax  on  real  es-      2.  There  shall  be  annually  levied  upon   all  real  property, 
with  the  improvement  thereon,  including  entries  of  land,  twelve 
cents  on  every  hundred  dollars  value  thereof 
Tax  on  real  es-      3.  If  any  person  shall  sell  his  real  property,  and  shall  have 
S.'c.'io2,"sr4^'  "°  estate  within  reach  of  the  sheriff  to  satisfy  the  taxes  im- 
posed thereon,  at  the  time  when  they  become  demandable,  the 
land  shall  be  bound  for  the  same,  as  well  as  the  property  of 
the  then  owner. 
Tax  on  poll.         4.  Upon  every  free  male,  between  the  ages  of  twenty-one 
byowJer.^'^''^  and  forty-five  years,  a  tax  of  forty  cents;  and  for  every  slave 
of  either  sex,  between  the  ages  of  twelve  and  fifty  years,  the 
When  hirer      like  sum  shall  be  paid  by  the  owner,  and  not  the  hirer;  unless 
shaUpay.        "vv^hen  the  owner  may  be  a  non-resident  and  his  slave  be  hired, 
Whom  CO.  may  and  then  the  hirer  shall  list  the  slave  and  pay  the  tax.     Pro- 
^ITtal—R     ^ided,  hoivever,  that  the  county  court  may  exempt  from  a  poll- 
§?c.  102,3.6.— tax  such  poor  and  infirm  persons,  and  disabled  and  insane 
State  Const'n,   giaves,  as  thcv  may  declare  and  record  to  be  fit  objects  for  ex- 

Ai't.4,s.3,cl.2.  .'»•'•' 

emption. 
On  turnpike         5.  Upon  cach  toU-gate  of  a  turnpike-road,  a  tax  of  ten  dol- 
On"|ue?kcross  lars  shall  be  paid  by  every  owner;  and  a  tax  of  three  dollars 
highways.— R.  per  gate  by  every  person  who  may  be  permitted  to  erect  gates 

1848,0.  80; 

X860,  c.  121.  *  The  taxes  laid  in  sections  two  and  four  include  the  taxes  imposed  in  section  36,  ch. 

6,  for  the  support  of  the  liisaue  Asylum — vide  p.  91,  and  Act  of  1864,  c.  38. 


ation. — R.  S. 
102,  s.  2. 


tate.— R.  S, 
102,  s.  1. 


Chap.  99.]  revenue.  507 

across  a  highway ;  and  a  tax,  equal  to  five  times  the  largest 
toll  by  the  owner  demanded,  upon  every  public  ferry;  and  a 
tax  of  ten  dollars  on  every  toll-bridge. 

6.  Upon  every  stud-horse  or  jackass,  let  to  mares  for  a  price,  On  stud-horses 
a  tax  of  five  dollars,  unless  the  value  of  the  highest  season  for  "»<! jackasses. 
one  mare  shall  exceed  that  sum,  in  which  case  a  tax  of  that 

value  shall  be  paid,  and  they  shall  be  listed  by  resident  own- 
ers ;  owners  residing   out  of  the  State,   of  such  as  are  kept  To  he  pni.i  in 
within  the  same  to  be  let  to  mares,  shall  pay  the  tax  forthwith  u'J™J,™je-)It, 
to  the  sheriff  of  the  first  county  into  which  the  horse  or  ass  — R.  S.  c.  102, 
may  be  put  to  stand  ;  and  if  he  shall  fail,  such  sheriff,  or  any  '• '''  *" 
other  sheriff  of  the  county  in  which  the  animal  may  stand, 
shall  forthwith  distrain  and  sell  it  for  the  tax. 

7.  Upon  the  value  of  all  real  and  personal  estate  which  On  real  estate 
shall  descend  upon,  be  devised  or  bequeathed  to,  or  shall  be-  and  pel-souarof 
come  distributable  among,  other  persons  than  lineal  descend-  S200,  descend- 
ants, or  to  or  for  the  benefit  of  the  father  or  mother,  or  any  b"ef,'„ealM,'or 
lineal  ancestor  of  the  deceased,  where  the  real  estate  descended  distributable, 
or  devised,  or  both  descended  and  devised,  on  or  to  any  heir  coiia'te'rai°km- 
or  devisee,  shall  be  of  the  value  of  three  hundred  dollars ;  or  dred. 

the  personal  estate  bequeathed  to  any  legatee,  or  distributive 
share,  or  both  legacy  and  distributive  share,  shall  be  of  the  value 
of  two  hundred  dollars,  the  following  taxes  shall  be  paid:  — 

(1.)    When  such  collateral  relation  shall  be  a  brother  or  sis-  First  class,  one 
ter  of  the  deceased,  or  any  descendant  of  a  brother  or  sister,  ^'^'^  °^°'' 
a  tax  of  one  per  cent. 

(2.)    When  such  collateral  relation  shall  be  a  brother  or  sis-  Second  class, 
ter  of  the  father  or  mother  of  the  deceased,  or  any  descendant '"°  ^^"^ "™'" 
of  a  brother  or  sister  of  the  father  or  mother  of  the  deceased,  a 
tax  of  two  per  cent. 

(3.)    When  such  collateral  relation  shall  be  in  any  other  Third  class, 
degree   of  consanguinity  to  the  deceased  than  is   above  de-     '^^  ^'"^  ^^'^ ' 
scribed,  or  the  legatee  or  devisee  shall  be  a  stranger  in  blood 
to  the  deceased,  a  tax  of  three  per  cent.     Provided,  however,  Certain  persons 
that  no  devise,  or  bequest,  or  distributive  share  to  the  widow  the™ x'^me 
of  the  deceased ;  nor  any  devise  or  bequest  to  the  wife   or  c.  72,  s.  1, 2. 
widow  of  a  son  of  the  deceased;  nor  to  the  husband  of  a 
daughter  of  the  deceased,  whether  she  be  living  or  dead,  shall 
be  taxed :  nor  shall  the  husband  of  any  deceased  wife,  receiv- 
ing her  estate  after  her  death,  be  subject  to  any  tax  therefor, 
unless  the  same  would  have  been  taxable  had  she  been  living. 

8.  The  executor  or  administrator  of  every  such  deceased ''"'"^ ""  i?^"^""" 

person,  on  his  settlement  of  the  estate,  shall  retain  out  of  the  piu^'onand"'^' 

legacy  or  distributive  share  of  every  such  legatee  or  next  of '*"'"* ''^'"""''^ 
I  .       , ,      ,  I        ,  1  1      J 1  r  ■  1  liv  executor  or 

Km,  the  tax  properly  chargeable  thereon  ;  and,  m  case  he  may  administrator, 

have  sold  any  real  estate  and  there  shall  be  a  surplus. in  his  "I"',''^'',g°, 
hands  not  needed  to  pay  debts  and  charges,  he  shall  retain  the  72,'s.  4.       ' 
proper  tax  of  each  person  entitled  to  such  surplus  ;  which  taxes 
he  shall  pay  to  the  clerk  of  the  court  of  pleas  and  quarter-ses- 
sions of  the  county  wherein  the  will  was  proved,  or  adminis- 
tration granted. 


508  EEVENTJK  [Chap.  99. 

Remedy  9_    jf  |},g  executor  or  administrator  shall  fail  to  retain  and 

filing  to  pay    pay  the  tax  to  the  clerk,  it  shall  be  deemed  a  breach  of  his 

'•'  72%~4'''*'''  ^o""^'  i^  o"^  shall  have  been  executed,  and  the  same  shall  be 

'"   '        put  in  suit,  on  behalf  of  the  State,  by  the  county  solicitor;  or 

such  executor  or  administrator,  with  his  sureties,  may  be  sued 

in  equity,  at  the  cost  of  the  State  in  case  of  failure. 

Vnineofpcr-        10,    Whenever  the  personal  property  in  the  hands  of  such 

ho"w  as^ceruiin-  cxecutor  or  administrator,  (the  same  not  being  needed  to  be 

ed.— 1848,  c.     converted  into  money  in  the  course  of  administration,)  shall  be 

of  an   uncertain  value,  he  shall  apply  to  the  county  court  to 

appoint  three  impartial  persons  of  probity  to  assess  the  value 

thereof;  and  such  assessment,  being  returned  to  the  court  and 

confirmed,  shall  be  conclusive  of  the  value. 

Executor,  &c.,      H.    The  executor  or  administrator,  as  soon  as  he  may  ascer- 

,  cierk'im  nc-      tain  that  the  land  of  the  deceased  will  not  be  needed  to  pay 

count  of  the      his  debts,  shall  report  to  the  clerk  of  the  court  who  receives  the 

tax  on  personalty,  an  account  of  such  real  estate ;  and  the  tax 

thereon  shall  be  paid  by  the  heirs  and  devisees  thereof,  respec- 

Its  value, bow  tively,  to  the  said  clerk; — the  value  of  the  real  estate  to  be 

ascertained  as  provided  in  the  preceding  section  in  relation  to 

personalty,  and  the  heir  and  devisee  being  duly  notified  of  the 

motion  to  appoint  commissioners. 

Heir  or  devisee      12.    If  they,  or  any  of  them,  fail  to  pay  said  tax  within 

taxm  sfx'"'^    twelve  months  after  the  report  of  the  executor  or  administra- 

moDths  after    tor,  the  clerk  shall  report  such  default  to  the  commissioner  for 

sued!'       *     the  judicial  circuit;  who,  thereupon,  shall  cause  a  scire  facias 

to  issue  to  the  defaulting  person,  to  show  cause  why  judgment 

shall  not  be  rendered  against  him  for  the  tax,  and  the  real 

estate  be  sold  to  pay  the  same ;  and   the  court  shall  render 

judgment,  and  cause  the  tax  to  be  collected  and  paid  to  the 

clerk. 

Clerk  to  keep        13.    The  clerk  shall  keep  a  record  of  the  taxes  on  the  real 

arecordofsuch         ,  lii  -iii-        •         -i  i7j.i 

taxes;  tore-     and  personal  estate  received  by  him  in  virtue  of  the  six  pre- 
tnmaiistto     ceding  sections,  and  shall  return  to  the  comptroller  a  correct 
and  pay  them   account  of  the  same  with  his  annual  statement  of  other  taxable 
i846*^''"72~      property ;  and  he  shall  annually  return  upon  oath  to  the  court 
5,6.'  "     '       of  pleas  and  quarter-sessions  of  his  county,  at  the  term  next 
preceding  the   time  at  which  the  sheriff  may  settle  with  the 
comptroller,  a  correct  account  of  the  same,  and  immediately 
pay  the  money  to  the  sheriff  of  the  county,  retaining  three  per 
cent,  thereof  for  his  services. 
Commissioners      14.    The  governor  shall  appoint  in  each  judicial  circuit,  one 
governor  in^     Or  more  Commissioners,  whose  duty  it  shall  be  to  institute  and 
each  circuit,  to  attend  to  all  suits  brought  to  enforce  the  collection  of  the  tax 
icction of  such  If '"i  i"  section  seven  of  this  chapter;  and  to   bring  suits  and 
tax.— 1854,  c.    take  such  other  steps  as  may  be  necessary  to  enforce  the  col- 
lection of  all  taxes  due  and  unpaid,  which  have  heretofore  been 
laid  on   property  real  and  personal,  descended  or  devised  to 
collateral  relations,  and  the  commissioners  shall  receive  such 
compensation  for  their  services  as  the  governor  may  allow. 

Estates  subject      15.    In  all  cascs  where  estates  descend,  or  are  devised  to 
to  tax,  not  to 


Chap.  99.]  revenue.  509 

collateral  relations,  or  strangers  in  blood,  and  the  same  shall  be  settled  with- 
be  divided  or  settled,    or  an  attempt   be   made  to  divide  or  tk,n'\i"de'r"™" 
settle    them,   without   any    lawful   administration    beins;  had  penalty  of 
upon    such    estates,    any    person    mtermeddhng  in    said    es-  37  ' 

tates,  shall  forfeit  and  pay  the  sum  of  five  hundred  dollars  ; 
to  be  sued  for  in  the  name  of  the  State,  in  the  superior  court 
of  the  county  wherein  the  testator  or  intestate  had  his  domicil 
at  the  time  of  his  death,  and  accounted  for  when  collected  as 
public  tax. 

16.  Whenever  any  person   shall   die,  leaving  no  lineal  de-  When  no  nd- 
scendants,  and  leaving  property  liable  to  the  tax  imposed  by  ™,ree  n"oJi°hs'° 
the  seventh  section  of  this  chapter,  and  no  administration  shall  clerk  to  admin- 
be  had  on  the  estate  within  three  months  thereafter,  it  shall  ^s^ter.— 1854,  c. 
be  the  duty  of  the  county  court  upon  being  informed  of  the 

fact,  to  grant  administration  thereof  to  the  clerk  of  the  county 
court,  who  shall  retain  and  account  for  the  tax  according  to 
the  preceding  sections  of  this  chapter. 

17.  It  shall  be  the  duty  of  the   commissioners  to  institute  Commissioners 
suit  for  all  penalties  incm-red  by  clerks  for  failing  to  collect  '"g "ferkl^or" 
and  account  for  the  tax  on  collateral  descents;  which  penal- penalties,  &c. 
ties  shall  be  accounted  for  as  public  tax.  —1864,  c.  37. 

18.  Every  conveyance  made  by  such  deceased  person,  with  Conveyances 
intent  fraudulently  to  evade  the  collection  of  said  taxes,  or  such^tox°void. 
any  of  them,  shall,  as  against  the  State,  be  void  ;  and  the  same  isie.c.  72,  s.  3. 
shall  be  chargeable  at  the  suit  of  the  State,  on  the  property 
conveyed,  in  the  hands  of  such  vendee  or  donee,  and   his  as- 
signee. 

19.  Upon  every  dollar  more  than  six  dollars  of  net  interest  Tax  on  all  in- 
not  listed  theretofore,  either  received  during  the  year  next  pre-  i,^g'^six^donti^. 

ceding  the  first  day  of  April,  or  during  that  time  accrued 1850,  c.  12I; 

or  converted  into  principal,  so  as  to  become  an  interest  bearing  ^®^*' 
subject, —  (whether  demandable  or  not,)  on  money  owed  by 

solvent  debtors,  wherever  they  may  reside,  a  tax  of  three  cents. 

20.  Upon  every  dollar  more  than  six  dollars  of  net  dividend  On  dividends 
or  profit,  not  theretofore  listed,  actually  due  or  received  dur-  cee'din'^'six''" 
ing  the  year  ending  on  the  said  first  day  of  April,  upon  money  dollars?— 1850, 
vested  in  steam  vessels   of  twenty  tons  burden   and  upwards,  isal^'*"^' 
or  in  stocks  of  any  kind,  or  in  shares  of  any  incorporated  or 

trading  company,  whether  in  or  out  of  the  State — and  herein 
shall  be  included  all  bank  dividends,  bonds,  and  certificates 
of  debt  of  any  other  State  or  country,  or  of  any  public  corpo- 
ration created  by  this  or  any  other  State  —  a  tax  of  three  cents, 

21.  Such    net  interest,   dividend,  or  profit,  shall  be  ascer- Taxable  sum 
tained  by  deducting  from  the  whole   amount  thereof,  such  in-  "/o^'ascCTt^ii- 
terest  as  during  that  time  had  accrued  against  the  payer  of  ed.— isso,  c. 
the  tax.  121,  s.  2. 

22.  Upon  every  hundred  dollars  employed  in  buying  and  On  money  em- 
selling  slaves,  whether  the  said  capital  shall  be  borrowed  or  f,|g-'i^,'^siaVes'^''" 
shall  be  the  individual  property  of  the  person  or  company  in-  ami  other  kiilds 
vesting  the  same,  during  the  year  ending  on  the  said  first  day  is5™e!i2i  s. 
of  April,  twenty-five  cents ;  and  upon  every  hundred  dollars  2.    ' 

43* 


510 


REVENUE. 


[Chap.  99. 


Salkies,  bug- 
gies, aud  other 
pleasure  vehi- 
cles of  S;50 
value,  and  up- 
wards.—1850, 
e.  121,  s.  6. 


Plate,  jewelry, 
and  watches. 


Musical  instru- 
ments. 

Certain  arms, 
if  at  any  time 
used  during  the 
year. 


Retailers. 

TaTern-keep- 
ers. 

Billiard  tables. 

Bowling-alleys 

Ijvery-stablcs. 

Playing  cards. 
Seller  to  state 
ttie  number. 


Peddlers  of  pa- 
tent medicines. 


Mortgages, 
trust  deeds, 
and  marriage 
contracts. 
Ke£Tiflter  to  re- 
ocIto  and  uc- 
couut  for  tax. 


employed  within  the  same  time  in  any  other  species  of  trade, 
not  in  this  chapter  specially  taxed,  ten  cents. 
>  23.  Upon  each  sulky,  gig,  buggy,  barouche,  carriage,  and 
other  pleasure  vehicles,  in  use  by  the  owner,  or  by  his  consent, 
of  the  value  of  fifty  dollars  and  under  a  hundred  dollars,  fifty 
cents ;  of  the  value  of  one  hundred  dollars  and  under  two 
hundred  dollars,  one  dollar ;  of  the  value  of  two  hundred  dol- 
lars and  under  three  hundred  dollars,  two  dollars;  of  the  value 
of  three  hundred  dollars  and  under  four  hundred  dollars,  three 
dollars ;  of  the  value  of  four  hundred  dollars  and  upwards, 
four  dollars. 

^  (2.)  Upon  all  gold  and  silver  plate  and  ornamental  jewelry 
in  use,  except  ornamental  jewelry  worn  by  females,  of  as  great 
value  as  fifty  dollars,  one  per  centum  on  the  value.  On  each 
gold  watch  in  use,  one  dollar ;  on  each  silver  watch  in  use, 
twenty-five  cents. 

"  (3.)  Upon  each  harp  in  use,  two  dollars;  on  each  piano-forte 
in  use,  one  dollar. 

V  (4.)  Upon  every  pistol,  except  such  as  are  used  exclusively 
for  mustering,  and  on  every  bowie  knife,  one  dollar.  On 
dirks  and  sword  canes,  fifty  cents  each.  Provided,  however, 
that  of  said  arms  only  such  shall  be  taxable  as  at  some  time 
within  the  year  have  been  used,  worn,  or  carried  about  the 
person  of  the  owner,  or  of  some  other  by  his  consent. 

(5.)  On  all  retailers  of  wines,  cordials,  or  spirituous  liquors, 
twenty  dollars. 

(6.)  On  every  keeper  of  a  common  inn,  ordinary,  or  tavern, 
ten  dollars. 

(7.)  On  each  billiard  table  one  hundred  dollars,  except  when 
there  are  more  than  one  kept  by  the  same  individual  in  the 
same  room  ;  in  that  case,  a  tax  of  one  hundred  dollars  shall  be 
paid  on  the  first,  and  fifty  dollars  on  each  additional  table. 

(8.)  On  each  bowling-alley,  commonly  called  nine  pin  or 
ten  pin,  or  by  whatever  other  name  called,  twenty-five  dol- 
lars. 

(9.)    On  each  livery-stable,  a  tax  of  ten  dollars. 

(10.)  On  each  pack  of  playing  cards,  twenty-five  cents,  to 
be  paid  by  the  seller;  and  every  merchant,  shopkeeper,  re- 
tailer, inn  or  tavern-keeper,  or  public  dealer  in  goods,  wares,  or 
merchandise,  or  other  thing,  shall  list  the  number  of  packs  he 
may  have  sold  during  the  year. 

(11.)  On  all  peddlers  of  patent  soap,  medicines  for  the  killing 
of  crows,  chinches,  and  other  vermin,  for  the  curing  of  head- 
ache, toothache,  or  corns,  and  of  all  patent  medicines,  razors, 
and  razor  straps,  a  tax  of  five  dollars  in  every  county  in  which 
they  may  so  peddle. 

(12.)  On  each  n)ortgage  deed,  marriage  contract,  and  deed 
in  trust  made  to  secure  debts  or  liabilities,  which  shall  be 
registered,  one  dollar,  which  the  register  shall  pay.  The  regis- 
ter shall  not  be  obliged  to  record  any  such  deed,  unless  the 
tax  thereon  is  paid  to  him ;  and  he  shall  indorse  thereon  the 


Chap.  99.]  revenue.  511 

payment  of  the  tax,  and  shall  render  to  the  justice  who  takes  To  list  the 
the  tax  list,  the  number  of  such  deeds  by  him  registered  in  the  dee"is''&c '^  un- 
preceding  year,  under  the   penalty  of  one  hundred  dollars  for  rfer  peimitv  of 
the  use  of  the  State,  to  be  collected  by  the  county  solicitor.       faMra"""'  "' 

(13.)    On  each  marriage  license,  the  sum  of  one  dollar,  which  Tax  on  mar- 
shall  be    paid   by  the   clerk;  and   no   clerk   shall    issue   such  c"e?k''to'"e-''' 
license  unless  the  tax  thereon  shall  be  paid  to  him;  and  he  <^eive  and  list, 
shall  render  to  the  justice  who  takes  the  tax  list  the  number  of  ~^^^''' 
such  licences  by  him  granted  in  the  preceding  year,  under  the 
penalty  of  two  hundred  dollars  for  the  use  of  the  State,  to  be 
collected  by  the  county  solicitor. 

(14.)    The  taxes  herein  imposed  on  retailers,  tavern-keepers,  Tax  on  retail- 
peddlers,  billiard  tables,  and  bowling-alleys,  shall  be  annually  "Id  boSgl 
paid  in  advance  to  the  sheriff  of  the  county,  who  shall  grant  a  alleys  to  be  _ 
license  for  the  same;"  the  applicant  for  license  to  retail  spirit- [nlfdvance!^ 
uous  liquors,  having  first  obtained  an  order  therefor,  as  pro-  1854. 
vided   in  the   chapter  entitled  "  Ordinaries  and  Inns."     And 
any  person  offending  against  this  provision,  shall  pay  a  double 
tax,  to  be  collected  by  distress. 

24.    On  every  merchant,  merchant-tailor,  or  jeweller,  who  Jlercbants, 
shall  sell  goods,  wares,  and  merchandise,  a  tax  of  one  fourth  "'^'■'■'lant-taii- 

£■  i  1-  -,1  ,  ,        ors,  and  jewel- 

01  one  per  cent,  upon  his  capital :  on  every  merchant,  apothe-  Lis. 
cary,  druggist,  or  other  dealer,  consignee,  or  agent,  selling  at  Dealers  in 
wholesale  or  retail,  spirituous  liquors,  wines,  or  cordials,  five  Jj^^^^-.^"^'' 
per  cent,  upon  the  capital  so  employed,  to  be  paid  by  the  sel- 
ler: on  every  merchant  or  apothecary  selling  drugs,  medicines.  Drags,  medi- 
or  nostrums,  as  agent  of  the  owner,  if  a  non-resident,  twenty-  trams  of  no"-*" 
five  per  cent,  of  the  value,  to  be  paid  by  the  seller :  on  every  residents. 
commission    merchant,   one   per  cent,  on  the  commission  re-  Comn 


amission 


ceived  by  him  :  on  every  auctioneer,  one-fourth  of  one  per  cent.  ™«''<;''-'"";! 
upon  the  value  of  all  goods  sold  by  him.     Provided,  that  no  '^"'^  '°"^"^"- 
tax  shall  be  levied  upon  sales  made  under  an  execution,  or 
order  issuing  from  any  court,  or  from  a  justice  of  the  peace, 
nor  by  any  executor,  administrator,  or  trustee.     The  capital  Capital  and 
aforesaid  sliall  be  the  aggregate  sum  of  the  purchases  of  goods,  mere"hants"'  °'" 
wares,  and  merchandise,  made  within  the  year  preceding  the  iiow  estimated 
first  day  of  April.     The  commissions  received  by  each  com-  ^°'^  ^^' 
mission  merchant,  shall  be  computed  by  the  same  time,  and 
also  the  amount  of  such  articles,  not  of  the  manufacture  of  the 
State,  as  are  sent  here  to  be  sold  by  the  consignees  or  agents 
of  the  owner.     All  distillers  of  spirits  of  turpentine  shall  pay  Distillers  of 
an    annual    tax    of    two    dollars    and   fifty    cents,    on   every  turpentine.— 
distillery  of  a  capacity  of  ten  barrels  and    under;  on  every  ^^^*' 
distillery   of  a    capacity  between  ten  and  fifteen  barrels,   an 
annual  tax  of  three  dollars   and  fifty  cents ;  on    every  distil- 
lery  of   a    capacity   between    fifteen   and   twenty   barrels,  an 
annual  tax  of  five  dollars ;  and  on  every  one  of  a  larger  capac- 
ity than  twenty  barrels,  an  annual  tax  of  ten  dollars. 

25.    The  bonds  and  notes  payable  to  any  merchant,  mcr-  Bond=,  &c.,  of 
chant-tailor,  or  jeweller,  shall  not  be  deemed  part  of  his  capital  "ITt^iecmc'd*'''' 
stock,   but  the  interest  on  the  same  shall  be  taxed  as  other  stock.— ibso, 
money  at  interest.  '■  ^'^^'  '•  ^- 


512  REVENDE.  [Chap.  99. 

Merchants,&o.,      26.    Every  such  merchant,  merchant-tailor,  or  jeweller,  en- 

li'ce'lll^e'oil^first  g^ged  in  business  in  any  county  on  the  first  day  of  April,  shall 

ofAprii.— K.  S.  apply  to  the  sheritl'of  such  county,  and  on  paying  the  tax  on 

iS44^c.^i8t."2.  his   capital  estimated  as  aforesaid,  (the  account  of  which  he 

shall  swear  to  in  an  affidavit  subscribed  and  made  before  the 

sheriff,)  shall  take  a  receipt  therefor,  and  be  allowed  to  carry  on 

his  business. 

Such  as  open        £7.    Every  person  opening  such  store,  after  the  first  day  of 

ward?,'how  to    April,  shall  pay  the  tax,  or  shall  execute  and  deposit  with  the 

obtain  license,   sheriff  a  bond  with  good  security  payable  to  the  State  of  North 

— R.  S.  c.  102,     „        ,.  ,  ,1        ,  j^i  i.     r      11    1  •  u 

E.  14.  Carolina,  to  pay  the  tax  on  the  amount  ot  all  nis  purchases, 

including  his  present  stock,  to  the  first  day  of  April  next  suc- 
ceeding ;  and  thereupon  shall  take  from  the  sheriff  a  receipt 
for  such  tax  or  bond,  and  be  allowed  to  carry  on  his  busi- 
ness. 

Merchant  sell-       28.    Evcrv  wholesale,  commission,  or  retail  merchant,  mer- 

ing  wUhout,  to  ■       "^  ■  11  1  ,      11         11  1 

pay  additional  chant-tailor,  or  jeweller,  who  shall  sell  any  goods,  wares,  or 
'?''?» ''Ts"   merchandise,  without  first  taking  the  receipt  of  the  sheriff',  as 
0.  i'J2,  s.  14.      in  any  of  the  foregoing  sections  ot  this  chapter  is   provided, 
shall  pay  an  additional  tax  of  one  hundred  clollars,  which  the 
sheriff'  shall  collect  forthwith  by  distress,  with  the   other  tax 
imposed  on  such  merchant. 
On  peddlers  of       29.    There  shall  be  paid  in  advance  to  the  sheriff  of  each 
notofmanu'fao-  couuty  a  tax  of  thirty  dollars,  by  every  person  who  shall  offer 
tnre  of  'he        for  gale,  or  peddle  in  that  county,  any  riding  vehicle,  not  of  the 
eachcountj"—  manufacture   of  this    State :    and    on    all   horses    and   mules 
1846,  c.^  74.       brought  into  the    State  for  sale,  whether  by  citizens  of  the 
bronghtlnto      State  or  others,  there  shall  be  paid  to  the  sheriff  a  tax  of  ten 
State  for  sale,   dollars  for  each  county  in  which  any  sale  of  such   horses  or 
"~      ■  mules  may  be  made.      Provided,  that,  when   a  person   shall 

offer  for  sale  any  vehicle  purchased  for  his  own  use,  he  shall 
not  be  subject  to  the  above  tax. 
On  persons  30.    A  tax  of  One  hundred  dollars  shall  be  paid  to  the  sheriff 

es^TbTifiiment  of  the  county  by  every  person  who  shall  keep  therein  an  es- 
for  sale  of  such  tablishment  for  the  sale  of  such  vehicles,  any  part  of  the  wood- 
c.  74.  'work  of  which  is  not  of  the  manufacture  of  this  State;  and  a 

tax  of  fifty  dollars,  when  the  vehicles  are  of  the  manufacture 
Unless  sold       of  this  State.     Provided,  nevertheless,  that  no  person  who  is  a 
where  made.—  manufacturer  of  such  vehicles  in  this  State,  shall  be  subject  to 
the  tax  for  the   sale  of  vehicles  manufactured  by  him,  when 
said  sales  are  made  in  his  county. 
Seiiinfr,  or  of-        3i.    There  shall  be  paid  in  advance  to  the  sheriff  of  each 
B^mple?^*^     ''county  a  tax  of  fifty  dollars,  by  every  person   exhibiting,  sell- 
ing, or  offering  to  sell  by  sample,  any  goods,  wares,  or  mer- 
chandise not  of  the  manufacture  of  this  State. 
License  nnder       32.    On  payment  of  the  tax  mentioned  in  the  three  prcced- 
inK*s^ectrons ob-  ing  sections,  the  person  paying  the  same  shall  take  the  sheriff's 
tained  on  pay-  receipt  specifying  the  county  and  purpose  for  which  it  is  paid, 
'"^        '^'      and  thereupon  he  may  exercise  such  employment  for  one  year, 
and  sell  at  any  places  in  the  county  for  which  the  tax  is  paid. 
peddie"uiider    Provided,  always,  That  such  receipt  shall  not  be  construed  to 


Chap.  99.]  revenue.  513" 

permit  two  or  more  persons  to  peddle  under  the  same  license,  ine  license  — 
under  the  pretence  of  being  partners  in  trade.  ''■  ^'  "^^  ^'^^' 

'S'S.  If  any  person  shall  oflend  against  any  of  the  four  pre-  Double  tax  for 
ceding  sections,  he  shall  pay  to  the  sheriff  double  the  tax  due  ™|?g'i'Jfg'"™^ 
from  him,  which  the  sheriif  shall  forthwith  collect  by  distress,    tions. 

34.  Every  peddler,  except  as  hereinafter  provided,  of  any  On  peddlers  of 
other  article,  part  of  machinery,  or  thing  whatsoever,  than  °orobt'u?ni'n^ 
aforesaid,  the  whole  or  principal  part  whereof,  in  value,  shall  license,  smoa 
be  not  of  the  growth  or  manufacture  of  this  State,  who  shall  "oounty  — r."s. 
exercise  such  employment,  without  first  having  obtained  an  c- 102,  s.  lo,  13. 
order  allowing  him  to  peddle,  from  the  court  of  pleas  and 
quarter-sessions  of  the  county  in  which  he  proposes  to  peddle, 

and  paid  the  tax  in  the  following  section  imposed,  shall  pay  a 
tax  of  one  hundred  dollars  a  year  for  each  county  in  which  he 
may  so  peddle,  which  the  sheriff  shall  forthwith  collect  by  dis- 
tress. 

35.  Every  person  who  shall  prove  to  the  court  that  he  is  of  On  pedjiers 
good  moral  character,  and  that  he  is  a  native  or  naturalized  cense"'s3o' "for 
citizen  of  the  United  States,  shall  be  entitled  to  such  order  e^ch  county.— 
from  the  county  court;  and  on  paying  to  the  sheriff  of  the  io._/s46°c.^" 
county  for  which  the  order  was  granted,  a  tax  of  thirty  dollars,  73  ;  i848,'c.79. 
and   taking   a    receipt   therefor,    specifying    the    purpose    and 

county,  may  peddle  in  that  county  for  one  year,  cither  on  land 
or  water,  articles,  parts  of  machinery,  or  other  thing  of  the 
kind  mentioned  in  the  preceding  section. 

36.  Provided,  (1.)    That  when  such  licensed  peddler  shall  Proviso  as  to 
peddle   altogether   on  the  waters  on  the  south  side  of  Albe-  Aibemtrie"^ 
marie    sound    and    the   tributaries    entering  that  side   of  the  sound, '&c 
sound,  (Roanoke  and   Cashie  excepted,)  he  shall  pay  a  tax  of 

five  dollars  only. 

(2.)  That  any  person  may  freely  peddle  live-stock,  (except  As  to  peddling 
horses  and  mules,)  vegetables,  fruits,  oysters,  or  fresh  fish,  the  et'abfe'r&J'^^ 
growth  or  produce  of  the  United  States. 

(3.)    That  any  person,  a  citizen,  and  for  twelve  months  a  As  to  books, 
resident  of  the  State,  may  freely  peddle  books,  charts,  maps,  ^'^• 
phi'osophical  apparatus,  and  music  prints. 

(4.)    That  two  persons  shall  not  peddle  under  one  license,  T^vo  not  to  ped- 

)  i  f  u    •  i  die  under  one 

under  any  pretence  ot  bemg  partners.  license. 

(5.)    That  no  licensed  peddler  shall  sell  any  goods  or  other  Shall  pay 
thing  at  auction,  without  incurring  the  duties  on  auction  sales.  f|"n"saies  """" 

(6.)  That  any  person  who  shall  procure  houses  for  carrying  Deemed  ped- 
on  a  temporary  sale  of  goods,  at  one  or  more  public  places  in  tuey  procure 
the  State,  shall  be  deemed  a  peddler.  houses,  &c. 

37.  Upon  all  persons,  commonly  known  as  brokers,  who  for  On  brokers, 
the  purpose  of  gain,  shall  be  engaged  in  buying  or  selling  bills  it^°lVio2.— 
of  exchange,   or  the  bills   of  any   bank   incorporated   in  this  is48,  c.  78. 
State,  shall  be  levied  a  tax  of  one  hundred  dollars. 

38.  The  tax  shall  be  paid  in  advance,  to  the  sheriff  of  the  An.iS2io,  if 
county  in  which   the  calling  is   used,  whose   receipt  therefor  lH'nJ's' c.°io2i 
shall  allow  the  person  to  act  as  broker  aforesaid  for  one  year;  ^-  i5.— 164S,  c. 
and  if  any  without  such  authority  shall  act  as  such,  he  shall  '^" 


514  REVENUE.  [Chap.  99. 

pay  a  tax  of  two  Imndrcd  dollars,  which  the  sheriff  shall  forth- 
with collect  by  distress. 
On  all  receiv-      89.    Oil  surgeon  dentists,  practising  physicians,  practising 
m.d'fees.'of"    lawyers,   and   all   other  persons,   (ministers  of  the  gospel  ex- 
S500yearr\r      ccpted,)   whose  practice,   salaries,  or  fees,  or  all  of  them  to- 
c.^'i^iT.V  '    gether,   shall   yield  an   annual  gross  income  of  five  hundred 
dollars,  there   shall   be  levied  a   tax   of  three  dollars  for  the 
first  five  hundred,  and  two  dollars  for  every  additional   five 
hundred  dollars,  until  such  income  shall  exceed  fifteen  hundred 
dollars,  and   five    dollars    for    every    additional    five    hundred 
above  that  amount. 
On  license  to     ^^0.    Upon  each  license  to  attorneys  to  practise  law  in  the 
county  or  superior  courts,  ten  dollars,  to  be  paid  at  the  time  of 
obtaining  license,  to  the  clerk  of  the  supreme  court;  so  much 
thereof  as   may  be  paid  to  the  clerk  of  the  court  at  Ealeigh, 
of°-^R.' ^'.''c!     shall  be  paid  by  him  into  the  public  treasury  ;  and  so  much  as 
28,^8.5.-1846,  shall  be  received  by  the  clerk  at  Morganton,  shall  be  expended 
isso'cissi       '^y  '^'^  under  the  direction  of  the  court,  in  the  purchase  of 
books   for  the  library  at  that  place.     And  the  clerk  shall  be 
entitled  to  six  per  cent,  for  receiving  and  accounting  for  said 
money. 
On  insurance        41.    Upon   all   insurance    companies    incorporated  in   this 
companies.       State,  an  annual  tax  of  one  hundred  dollars ;  and  upon  all 
insurance  companies  incorporated  out  of  the  State,  an  annual 
tax  of  one   hundred  dollars  for  the  first  county,  and  fifty  dol- 
lars for  every  other  county  in  which  an  agency  shall  be  estab- 
baS'incor-     I'shed.      On  all    agencies  of   banks   incorporated  out   of  the 
poratedoutof   State,  a  tax  of  five  hundred  dollars.     The  tax  shall  be  paid  in 
State.  advance,  to  the  sheriff  of  the  county  where  the  company  may 

transact  its  business,  and  where  the  agency  may  be  estab- 
muKtTpav"  lished  :  and,  if  the  tax  be  not  paid  in  advance,  the  same  shall 
— 1850,  c.  121,  be  two  hundred  dollars,  which  the  sheriff  shall  forthwith  col- 
s.  7  ;  1854.  led.  On  each  express  company,  a  tax  of  two  hundred  dollars. 
On  circuses,  42.    Upon  every  company  of  circus  riders  or  equestrian  per- 

&o.,  exhibited  lormers,  and  upon  every  company  or  person,  who  for  reward, 
for  reward,  S50  shall  exhibit  any  collection  of  animals  commonly  known  as  a 
^or  eaci  coun-  menagg^ig^  ^^  annual  tax,  for  each  county  wherein  they  may 

exhibit,  of  fifty  dollars. 

On  stage-play-      43.    Upon   every  company  of  stage   or  theatrical   players, 

rope' dancers',    slight  of  hand  performers,  rope-dancers,  tumblers,   wirc-dan- 

exhibiters  for    cers,  or  company  exhibiting  for  reward  artificial  curiosities  of 

osities.  — 1860  ^'^Y  l<''id,  (models  of  useful  inventions  excepted,)  and  on  each 

c.  121,  s.  8.       one  of  such  persons,  when  they  perform  or  exhibit  alone,  an 

annual  tax  for  each  county  wherein  they  may  exhibit,  of  thirty 

dollars  ;  and  upon   every  person  or  company  exhibiting  any 

other  natural  curiosity,  not  already  mentioned,  an  annual  tax 

for  each  county  wherein  it  may  be  exhibited,  of  fifteen  dollars. 

On  sinfjors,  scr-      44.    Upon   evpiy   person,   or  company   of  singers,  dancers, 

piayers'nn'mu- Ethiopian  screnaders,  or  performers  on  musical  instruments, 

sicai  instru-      who,  for  the  public  amusement,  shall  sing,  dance,  serenade,  or 

ments,  for  re.        .  ■      i   •      i  ±    r  i  i  Jt 

ward.  — 1850  P'^*y  o"  musicai  instruments  tor  reward  ;  and  upon  every  other 
c.  121,  s.  8.    ' 


Chap.  99.]  revenue.  515 

public  exhibition  for  amusement,  exiiibited  for  reward ;  and 
upon  every  person  wiio  lectures  for  reward,  an  annual  tax  of 
live  doUari?,  unless  the  reward  be  wholly  devoted  to  some  lit- 
erary or  charitable  use  in  the  State. 

45.  The  tax  imposed  in  the  three  next  preceding  sections,  Tux  imposed 
shall  be  paid  in  advance,  to  tiie  sheriff  of  the  county  in  which  43, ^Cto'be *^' 
the  exhibition  is  to  be  made,  who  shall  thereupon  give  a  re- pi^'id  i"  "J- 
ceipt  for  the  same,  specifying  the  county  for  which  the  tax  is  jouiji'uri'.' 
paid,  and  a  list  of  the  performances,  animals,  or  articles  to  be  sueriutospe- 
exhibited;  and  if  such  tax  is  not  paid  in  advance,  the  sheriff  ^2^_  f^'^/^J^lj 
shall  forthwith  collect  a  double  tax.  tax  is  paid.— 

46.  Every   peddler,  stage-player,  slight  of  hand  performer,  peddiers^and^' 
rope-dancer,  tumbler,  wire-dancer,  company  of   circus  riders,  |)er>cjiis allowed 
or  equestrian  performers,  exhibiter  of  natural  or  artificial  curi-  s'ikw  tax  I'-e" 
osities,  company  of  singers,  serenaders,  or  musical  performers,  ceipttojustices 
dancers,   and  every   other    public  exhibiter  for   reward,   shall"" 

show  his  receipt  for  the  tax,  to  any  justice  of  the  peace  or  con- 
stable who  may  demand  a  view  thereof;  and  it  shall  be  the 
especial  duty  of  constables  to  demand  such  view. 

47.  If  the  justice  or  constable  shall  be  denied  a  view  of  the  Penalty  for  re- 
receipt,  the  oficnder  shall  forfeit  and  pay  one  hundred  dollars,  p"o"el'dhigs  to 
one  half  for  the  State,  and  the  other  half  for  the  constable  or  sni'orce  i^t.  —  R. 
any  other  who  will  sue  for  the  same  ;  and  the  justice,  if  the  19.  ■  -'  •  ' 
denial  be  to  him,  shall  forthwith  issue  his  warrant  for  the  re- 
covery thereof;  and  if  to  a  constable,  he  shall  arrest  the  party 

and  carry  him  before  some  justice  of  the  peace,  who  shall 
issue  his  warrant  for  the  penalty,  and  determine  the  cause. 

48.  All  free  persons,  living  with,  and  constituting  a  part  of  Members  of 
the  family,  and   all  colored  persons  living  by  consent  on  the  negiVtmlants^ 
lands  of  another,  shall  be  listed  by  the  head  of  the  family,  or  by^whom  listed. 
owner  of  the  land,  as  the  case  may  be. 

49.  Every  kind  of  property,  person,  employment,  profession.  What  subjects 
privilege,  or  subject,  on  which  a  tax  is  imposed  by  this  chap-  p'^'y^  c.*  102  X 
ter,  other  than  such  whereon  the  tax  imposed  is  demandable  22. 

at  tlie  time  it  is  laid,  shall  be  listed  for  taxation  within  the  last 
twenty  working  days  in  July,  in  every  year. 

50.  The  real  and  personal  estate,  and   other  taxable   sub-  Tax  lists  shall 
jects,  unless  otherwise  provided,  required  to  be  listed  for  tax-  April." 
ation,  shall  be  such  as  were  the  property  or  in  the  possession  Persons,  com- 
of  the  owner,  or  were  subjects  of  taxation,  on  the  first  day  of  "|',^t°day,'^may 
April  preceding,  and  the  polls  shall  be  such  as  were  of  the  re-  pay  tax  and 
quired  age   on  that  day.     And  any  freeman  arriving  at  age  l^io^s.  25.' 
after  that  day,  and  before  an  election,  may  list  himself  before 

the  sheriff  or  his  deputy,  and  pay  down  to  the  sheriff'  the  poll- 
tax  of  the  year. 

51.  Lists  of  the  taxables  of  testators,  intestates,  minors,  luna-  J'^^''^^„,'J,^\iig 
tics,  insane  persons,  absentees,  and  estates  held  in  trust,  shall  abied  persons 
be  rendered  by  the  executor,  administrator,  guardian,  agent,  "»'•<>"'?'''' ^j 

•'  .  '  1  '      o        '  whom  given  m. 

ti-ustce,  or  ccslui  que  trust,  as  the  case  may  be.  —  r.  s.  0. 102, 

52.  When  tracts  of  land  or  town  lots  have  been  divided  5-  '-•^j     ..  . ,  , 

1-111  11  r  !•  Ilia:      Lands,  divided 

alter  valuation  by  the  board,  the  taker  01  tax  lists  snail  amx  after  valuation, 


516  BEVENUE."  [Chap.  99. 

ll^tTd'^ll'lsss"'  ^^^  ^Gtmn  the  separate  value  of  each  part,  making  the  sum 
c'.' 36;' 1846, "'  of  ^11  the  valucs  equal  to  the  valuation  returned  by  the  board; 
c.  75.  and  the  justice  may  swear  and  examine  witnesses  to  aid  him 

in  the  inquiry. 
List-takers  ap-      53.    At  the  first  court  of  pleas  and  quarter-sessions  of  each 

pointed  by  first  i.       i    ^  j      c^       j.\       n     j.     ^  r     .       t,    , ,  ...      ^"''" 

court  after  1st  county,  held  after  the  first  day  of  April,  the  court  shall  annu- 
Aprii.  ally  appoint  for  each  captain's  district,  a  iustice  of  the  peace 

Iheirnames,      j.     1    i        ,1        i-    ,       r    ,  ■  ,  .  .  .   .'    . 

&c.,  advertised  *«  take  the  list  ot  taxable  property  ;  whose  names,  with  their 
^"''|"Ste™-— respective  districts,  shall,  during  the  term,  be  advertised  at  the 

court  house  by  the  clerk. 
If  no' npRoint-      54.    If  the  court  should  fail  to  make  such  appointment,  any 
Uc'es'maVap-    ^^''^^'^  justices  of  thc  peace  of  the   county   may   meet  at  the 
5ui"'— "si      '^^^'^^  °f  t'le  county  court,  on  or   before  the  first  day  of  July, 
^uy.    1  4  ,c.  g^j^j  appoint  the  takers  of  tax  lists  for  the  county,  and  the  clerk 

shall  record  the  same, 
betofifiedin  ^'^'  ^°^^^^^  °^  ^'^  appointments  of  the  takers  of  tax  lists,  as 
tc'n'd'ays^;  and  ^oon  as  they  are  made,  shall  be  issued  and  delivered  by  the 
ten°'daT'?a'^^'^  '"'^'^'^  ^°  ^^^  sherifl',  who  shall  serve  them  within  ten  days  on 
and  tlmes'^oT*'^  e^ch  justice,  and  he  shall  advertise,  at  three  several  places 
r''s"°'io2~  ■^^^^'^''^  ^^^  district,  at  least  ten  days  before  the  time  of  listing, 
23.  '"'  ''■  the  places  and  times,  where  and  when,  he  will  attend  for  re- 
ceiving the  list  of  taxables. 
Sects.  59  and  56.  The  notice  to  be  issued  as  aforesaid  to  the  justice,  shall 
f'dinto'nXe  ^cntain  a  copy  of  sections  fifty-nine  and  sixty-six  of  this  chap- 
to  list-taker,  ter  ;  and,  at  the  same  time,  the  clerk  shall  deliver  to  the  sheriff, 
is'le'lc/^TsVs.  *°  ^^  handed  to  each  justice,  a  fair  copy  of  the  returns,  made 
8,  9.'  ■  '  ■  by  the  last  preceding  board  of  valuation,  of  the  assessment  of 
real  estate  in  his  district;  which  copy  the  justice  shall  return, 
with  his  return  of  taxables,  to  the  clerk. 
If  list  taker  die,  57.  If  any  such  justice  should  die,  remove,  or  become  inca- 
npp'ointan"'°P^!^^'^'  ti^fore  his  duties  are  performed,  another  shall  be  ap- 
tiier.-R.  s.  c.  pointed  by  any  three  justices  of  the  county,  to  be  notified  by 
102, s. 23.        ^i^g  sheriir,  for  that  purpose;  and  such  justice  shall  take  the 

list. 
Inhabitants  to       58.  At  the  times  and  places  appointed  by  the  justice,  the 
give°the^         Inhabitants  of  the   district  shall  attend,  and  the  justice  shall 

Dst'takers  to  ^^^'^  °'''^^  ^°  ^'*^^.  °"®  g'^''"S  i'^  'I's  Ust,  all  the  articles  and 
read  o^veTsnb-  subjects  of  taxation;  and  thereupon  he  shall  render  to  the  jus- 
jects  of  taxa-    ticc  his  list  of  taxables,  and  at  the  same  time   shall  take  the 

tion,  and  ?d-       r   n         ■  .1 

minister  an        following  oaui  :  — 

°''ioTf'24'—  ^°"'  ^'  ^'^  *^°  solemnly  swear,  that  you,  either  in  your 
1850,  c.%21,"  s.  °^^'"  ""'ght)  or  thc  right  of  any  other  person  or  persons  wliom- 
10, 11.  soever,  either  as  guardian,  attorney,  agent,  or  trustee,  or  in  any 

other  manner  whatsoever,  are  not  liable  for  more  tuxes,  under 
the  laws  of  the  State,  than  the  amount  which  you  have  now 
listed ;  and  that  the  list  by  you  now  delivered,  contains  at 
least  as  large  an  amount  of  interest,  dividends,  profits,  prac- 
tice, salaries,  and  fees,  as  you  are  bound  to  list  for  taxation  ; 
and  in  all  other  respects  contains  a  just  and  true  account  of 
all  the  property  which  by  law  you  are  bound  to  list  for  taxa- 
tion, to  the  best  of  your  knowledge  and  belief:  so  help  you, 
God. 


Chap.  99.]  revenue.  517 

59.  No  justice  shall  take  the  tax  list  of  any  one,  but  on  ad-  Ponnity  for 
ministering  the  foregoing  oath,  on  pain  of  paying  one  hundred  min'Mei°oath. 
dollars  to  any  one  who  will  sue  for  it.     Provided,  however,  that  Proviso  for 
females,  aged,  and  infirm  persons,  and  persons  aijsent  from  the  IJ^^^'^selT/p™- 
county  during  the  days  of  listing  taxables,  may,  on  oath,  before  sons.— 1846,  c. 
any  other  justice,  render  a  list  of  his  taxables;  and  the  same    "' 

being  certified  by  such  justice,  shall  be  entered  on  the  tax  lists. 

60.  Real  estate  shall  always  be  listed  in  the  county  wherein  County  in 

it  is  situate.     Personal  property,  and  other  subjects  of  taxation,  ghi'u  Le^Msted.^ 

shall  be  listed  in  the  county  where  the  owner  or  lister  resides;  — E-  S-  c.  102, 

but  if  the  owner  reside  out  of  the  State,  they  shall  be  listed  in 

the  county  where  his  agent,  or  the  person  liable  for  the  tax 

may  reside.     Provided,  however,  that  when   real   estate  shall 

lie  in  one  or  more  counties,  a  list  of  such  estate,  lying  out  of 

the  county  of  the  owner's  residance,  sworn  before  a  justice  of 

the  county  wherein  the  owner  may  reside,  may  be  transmitted 

to  the  proper  taker  of  the  lists.     Provided  further,  that  such 

slaves,  or  other  taxable;  personal  estate  as  are  employed  on  the 

land  of  the  owner,  shall  be  listed  where  the  land  is  listed. 

61.  If  any  person,  bound  to  list  taxables  in  his  own  right,  Pe"o°3  failing 

r-  I  I        n       r.     •!  T  I  O         '    CO  llSt,  tO  pa/ 

or  m  rjght  of  another,  shall  fail  to  list  the  same,  or  any  part  double  tax.— 
thereof,  the  sheriff"  shall   collect  from    him,  and   of   his   own  ^3  ^- °- ^''^' ^• 
proper  estate,  double  the  tax  imposed  on  the  property  or  sub- 
ject not  listed. 

62.  If  the  sheriff,  or  other  person  shall  discover  that  any  Sheriff  discov- 
land  has  not  been  assessed,  he  shall  make  it  known  to  the  assessed"\o°re- 
county  court;  whereupon  a  board   shall   be  appointed  to  as- port  it  to  court. 

ii  1  I     11  J    •       xu  u        ■  I^roceedings 

sess  the  same,  v/ho  shall  proceed  in  the  manner  herein  pro-  thereon. 
vided  :  and  the  court  shall  ascertain  the  amount  of  tax  which, 
within  the  ten  preceding  years,  the  land  has  been  liable  for 
but  not  paid ;  and  the  sheritt"  shall  be  ordered  forthwith  to  col- 
lect treble  the  amount,  with  interest,  of  all  such  tax,  by  distress 
or  otherwise. 

63.  If  any  person  shall  refuse  to  take  the  oath  prescribed  in  Persons  I'^ting 
the  fifty-eighth  section  of  this  chapter,  he  shall  be  deemed  refusing  to  take 
guilty  of  a  misdemeanor;  and  the  justice  shall  forthwith  com-  oath,  guilty  of 
mit  him  to  the  common  jail,  unless  he  will  be  recognized  with  xo  be  commit- 
sureties  to  appear  at  the  next  term  of  the  superior  court  of  the  ''','•  '^n''  mdict- 
county  to  answer  the  charge ;  and,  on  conviction  or  submis-  121,  s.  12. 
sion,  he  shall  be  fined  one  hundred  dollars  at  least,  m.ore  than 

the  amount  of  his  taxes. 

64.  It  shall  be  the  duty  of  the  sheriffs  to  inform  the  attorney-  Sheriffto  in- 
general  and  solicitors  of  the  State  for  the  circuits  and  counties,  i™™fl;cer^of '" 
concerning  all  omissions  by  tax-payers,  done  in  their  respec- fnmds  on  rev- 
tive  counties  to  defraud  the  State  of  its  revenue  ;  and  the  attor-  puty  of  officer, 
ney-general  and  solicitors  of  the  State  for  circuits  and  coun- — isso,  0. 121, 
ties,  upon  information,  or  good  cause  for  suspicion,  that  any  ^" 

person  has  omitted  to  render  his  tax  list,  or  has  failed  to  render 
an  accurate  and  fair  list  of  all  the  property,  estate,  and  subjects 
upon  and  for  which  he  is  liable  to  be  taxed,  shall  file  a  bill  in 
equity  against  the  person  so  defaulting;  and  the  answer  of 
44 


518  REVENUE.  [Chap.  99. 

the  defendant  shall  not  be  competent  evidence  against  him  in 
any  criminal  or  penal  prosecution  whatever. 
Fonnsoftax         65.  The  public  treasurer,  at  the  public  cost,  shall  have  pre- 
trea^sur^r'^and''  pared  and  printed,  as  they  may  be  needed,  forms  of  tax  lists, 
sent  to  clerks,   with  all  the  articles  and  subjects  of  taxation  to  be  listed  under 
— 1850,  c.  121,  ^j^jg  chapter,  or  any  future  law,  mentioned  separately  over  the 
heads  of  parallel  columns,  in  which  the  amount  or  quantity  or 
description  of  each  article  or  subject  to  be  listed,  is  to  be  set 
down ;  and  he   shall  annually  furnish  to   each  county  court 
clerk,  two  copies  thereof  for  each  collection  district. 
Modeofent«r-       66.  The  justice  appointed  to  take  the  list  of  taxables  shall 
iis^g'll^isso^  c"  ^^^  down  each  article  or  subject  in  its  proper  column,  against 
131,  s.  15.  '      the  names  of  the  persons  listing,  arranged  in  alphabetical  or- 
der, and  return  the  same  to  the  clerk  of  the  county  court,  at 
the  term  next  after  the  time  prescribed  for  taking  the  list ;  and 
as  a  part  of  his  return,  which   he  shall   always  subscribe,  he 
shall  state  that  the  list  of  each  person  listing  was  rendered  on 
oath,  in  the  manner  prescribed  and  enjoined  by  law. 
List-taker  or         67.   If  any  justice  appointed  to  take  the  list  of  taxables,  or 
'l^g\Ta'otf°^    any  freeholder  appointed  to  assess  the  value  of  land,  shall  wil- 
ptuiity  ofmis-    fuly  refuse  to  discharge  the  duties  of  his  appointment,  he  shall 
demeanor.        ^^  deemed  guilty  of  a  misdemeanor. 

Lists  returned       68.  The  clerk,  on  receiving  the  returns,  shall  record  them  at 
by  deri^''and'^  length  in  alphabetical  order,  keeping  the  returns  of  each  dis- 
set  up  in  court  trict  separate  from  the  other;  and  at  the  next  county  court, 
c^iolT.^sf     after  they  are  directed  to  be  made,  shall  set  up  in  some  con- 
spicuous part  of  the  court  house,  a  copy  of  the  whole,  adding 
to  the  taxables  of  each  person  the  amount  of  tax  for  which  he 
is  liable :  and   any  clerk  oflending  against  any  of  the  duties 
prescribed  in  this  section  shall  forfeit  and  pay  one  hundred 
dollars. 
Abstracts  of         69.  The  clerk,  on  or  before  the  first  day  of  April  next  after 
lists  of  all  taxes  ^|jg  lists  are  returned,  shall  return  to  the  comptroller  an  ab- 
sent to  comp-  '.  /■/•ii  1 

troiier  before     stract  01  the  same,  showing  the  number  oi  acres  of  land,  and 

i,?t  April.         their   value,  the  valuation  of  town  lots,  and  the  number  of 

white  and  black  polls,  and  shall  specify  every  other  subject  of 

What  set  forth  taxation,  and  the  aggregate  tax  on  the  whole.     At  the  same 

in  abstracts,      time  the  clerk  shall  return  to  the  comptroller  an  abstract  of  the 

lists  of  the  county  and  poor  taxes  paid  in  his  county,  setting 

forth,  separately,  the  number  of  taxable  while  and  black  polls, 

the  amount  paid  on  each  hundred  dollars  value  of  land,  and 

also  the  gross  amount  of  taxes  of  every  kind  levied  for  county 

furnished  by     purposes  :  and  the  comptroller,  at  the  public  cost,  shall  furnish 

cmnpt.— R.  S.   tjje  clcrks  with  blank  forms  for  the  aforesaid  abstracts  of  both 

i«.^>2,  c.  162.~  kinds,  and  include  the  abstracts  in  his  reports. 

Vinaitv  on  70.   And  if  any  clerk  shall  olfend  against  any  of  the  duties 

cicTk  foiling  to  prescribed  in  the  i)rceedins'  section,  he  shall  forfeit  and  pay  to 

send  abstracts.  ',        ,,  ,  '  i      i    n  ,  i  •  i  • 

— U.S. c.  102,  the  btate  one  thousand  dollars,  to  be  recovered  against  him 

^  W2^~^^^^'  ^"^  ^'''^  sureties  of  his  bond  in  the  superior  court  of  Wake 

county,  at  the  term  next  after  the  default,  on  motion  of  the 

attorney-general ;  and  it  sliall  be  the  duty  of  the  comptroller  to 

inform  the  attorney-general  of  such  default. 


Chap.  99.]  revenue.  519 

71.  The  county  court,  on  the  prescribed  oath,  may  take  the  County  court 
tax  list  of  any  person  applying  to  list  his  taxables,  at  any  term  "P  to  Marc ii, 
of  such  court  before  the  first  day  of  March,  upon  his  paying  tax  lists,— 
to  the  clerk  one  dollar  for  recording  the  same.  "         ^*^''  "■  ^''• 

72.  The  several  county  courts,  at  the  term  when  they  shall  Board  of  vaiua- 
appoint  justices  to  take  the  tax  lists  for  the  year  eighteen  hun-  ev"ry  five'vea'i's 
dred  and  fifty-five,  and  at  the  same  term  every  five  years  there-  to  value  re.ii 
after,  shall  appoint  two  respectable  freeholders,  men  of  skill  ^^"'"'' 

and  probity,  to  be  associated  with  each  justice,  and  these  three 
shall  be  styled  a  board  of  valuation.     They  shall  be  notified  of 
their  appointment  by  the  clerk,  and  as  such  board  shall  ascer- 
tain, either  by  viewing  the  premises  or  otherwise,  as  accurately 
as  may  be  practicable,  the  cash  value  of  the  lands  or  other  real 
estate  with  the  improvements  thereon,  situate  within  the  dis- 
tricts for  which  they  are  appointed,  and  return   the  same  to 
their  respective  county  courts,  in  the  manner  herein  prescribed,  p^^.  -v^riiin;,, 
And  for  the  town  of  Wilmington  such  a  board  shall  be  a p- ton  every 'two 
pointed  every  two  years  after  the  time  of  their  appointment,  ^''75^'~5"*' 
in  the  said  year  eighteen  hundred  and  fifty-five.  iS52,'e!  69. 

73.  In  estimating  the  value,  the  board  may  call  and  swear  Mode  of  assess- 
witnesses  to  testify  thereto,  and  they  shall  take  into  the  esti-  pifhTries," 
mate    any   fishery   appurtenant   to,   or   used  with,  the    land ;  mines,  &c., 
also,  all  mines  of  metal,  stone,  or  coal,  or  other  matter  dis-  ™i'u"ron.'^  ^ 
covered,  or  supposed  to  exist,  whereby  the  price  of  the  land  is  Lands  in  sev- 
enhanced:  and  when  the  same  tract,  or  body  of  land,  shall  lie  ^herl'vaW. 
in  one  or  more  districts,  the  board,  where  the  owner  resides, 

shall  ascertain  the  value  of  the  whole  tract;  and,  if  the  owner 
resides  in  neither  of  the  districts,  the  board  where  the  greater 
part  may  lie,  shall  value  the  whole.  And  the  board  shall  an- 
nex to  their  return  of  valuation  the  following  affidavit,  sub- 
scribed by  them,  and  sworn  before,  and  certified  by,  some 
justice  of  the  peace  :  — 

"  We  solemnly  swear,  that  the  foregoing  valuation  of  land,  AfKdaTit  of 
with  the  improvements  thereon,  and  privileges  thereto  attached,  c°75'^s"~i"''' 
made  by  us,  is,  in  our  judgment  and  belief,  the  actual  value  "' '  '  ' 
thereof,  in  cash;  and  that,  in  making  the  same,  we  have  en- 
deavored to  do  equal  justice  to  the  public  and  to  the  individu- 
als concerned  :  so  help  us,  God." 

74.  The  owner  of  land,  or  his  agent,  (if  he  be  a  non-resi-  Owner  to  fur- 
dent,)  shall  on  oath  furnish  the  bojrd  with  a  list,  including  land  hif,4i'e'tate 
entries,  setting  forth  the  separate  tracts,  and  also  the  several  for  valuation, 
contiguous  bodies  or  tracts  of  land  owned  by  him  in  the  dis-  "3^'"''  '^' "' 
trict,  together  with  the  names  of  the  watercourses  or  other 
remarkable  places  on  or  nearest  to  which  they  may  be  situate, 

and  the  number  of  acres  in  each  separate  tract  or  contiguous 
bodies  of  land:  town  lots  shall  be  listed  separately,  and  each 
lot  be  numbered  according  to  the  plan  of  the  town :  and  each 
separate  body  of  land  and  town  lot,  shall  be  separately  and 
distinctly  valued  and  returned. 

75.  If  the  owner,  or  his  agent,  will  not  on  oath  state  the  when  nnmiicr 
number  of  acres,  or  if  the  statement  is  so  vague  that  the  board  of  "cres  un- 


520  REVENUE.  [CUAP.    99. 

shall  order sur- cannot,  with  reasonable   certainty,  determine  the  number  of 
Tevsatowner's  jjgj.pj,^  ||,py  gij^n  procure  tlic  county  or  other  surveyor  to  survey 
the  land,  at  the  cost  of  the  owner,  who  may  be  warranted  for 
his  fees  and  other  expenses,  by  the  surveyor. 
VaUmtion  too        76.  If  any  one  deem  that  too  high  a  valuation  has  been  put 
du^'ecU "^^ '^^'    O"  li'^  laud,  the  county  court,  at  the  ensuing  term,  may  reduce 
How  advauccii,  the  same,  on  motion,  and  satisfactory  proof;  or  they  may  in- 
by  minS^&o!''  ^"ire  into  the  complaint,  by  commissioners  appointed  for  that 
— 1846,  c!  75;    purpose.     And  in  all  cases  where  land,  after  valuation,  shall 
1848,  c.  61.       increase  in  value,  by  reason  of  mines  of  metal,  coal,  stone,  or 
other  valuable  thing   being  discovered  or   worked,   or  if  the 
same  shall  decrease  in  value  by  reason  of  fire  or  extraordinary 
causes,  the  justice  taking  the  list,  shall  appoint  and  swear  two 
respectable  and  disinterested  freeholders,  who,  with   himself, 
shall  reassess  said  land  ;  and  the  justice  shall  affix  their  valua- 
tion to  the  land. 
Overcharge  of      77.  In  like  manner,  if  any  one  shall  be  charged  with  more 
OTrre^ted  — R    P°l'  °'^  other  Subject  of  taxation  than  he  is  liable  for,  the  court 
S.  e.  102,'s.  38.  shall  direct  the  clerk  to  give  a  certificate,  stating  the  amount 
and  subject  of  tax;  which  certificate  shall  be  received  by  the 
comptroller  of  the  State,  and  deducted  by  him  from  the  proper 
tax  to  be  accounted  for  by  the  sheriff. 
Pay  of  board.        78.  The  members  of  every  board,  engaged  in  assessing  the 
—1846,  c.  75.    Yalue  of  laud,  shall  receive,  each,  one  dollar  a  day  for  the  time 

engaged,  to  be  paid  by  the  county  court. 
Allowance  to         79.  For  all  services  of  the  clerks  in  relation  to  the  taxes,  not 
clerk.  jj.|  ^j^jg  £.|^ap{^er  specially  provided  for,  they  shall  be  paid  by  the 

county  such  sum  as  the  court  may  allow. 
Double  tax,  in       80.  The  county  courts  may  release  any  person  from  the  paj"^- 
m«"'bTre^        mcnt  of  a  doable  tax,  for  failing  to  list  his  taxables,  in  cases 
leased  by  CO.     where  it  shall  appear  to  the  court,  by  satisfactory  proof,  that 
r7?'s~io^*^'   ^^^'-'■^  failure  occurred  by  reason  of  the  sickness  of  the  party,  at 
'    '  '    '       the  very  time  when  the  tax  list  was  taken;  or  where  it  may 
appear  that  he  rendered  a  list,  and  his  name  was  omitted  to 
be  entered,  or  has  been  omitted  in  the  duplicate  prepared  by 
the  justice  to  be  returned  to  the  clerk,  or  other  sufficient  cause, 
to   be  judged  of  by  the  court:  and  the  court  shall  have  no 
power  to  remit  a  double  tax  in  any  other  case,  and  they  are 
expressly  forbidden  to  do  so. 
Tax  lists  de-         81.   The  cleik  of  the  couijty  court  shall,  on  or  before  the 
tosUerifl^by^"^''  first  day  of  April,  in  the  year  ensuing  the  taking  the  lists,  de- 
April,  liver  to  the  sheriff  of  the  county  a  fair  and  accurate  copy,  in 
fe"™onists™' alphabetical  order,  of  the  tax  list,  which  shall  contain  the  pub-" 
Penalty  for       lie  tax,  Or  tax  payable  to  the  public  treasurer,  and  the  taxes 
s'"c!1o2;T'4'i.  imposed  by  the  justices  of  the  county  court.     It  shall  likewise 
designate  the  separate  amount  due  from  each  subject  of  taxa- 
tion, and  extend  the  aggregate  amounts  due  from  each  person 
in  columns.    And  if'any  clerk  shall  fail  to  furnish  the  sheriff, 
at  the  time  provided,  with  a  copy  of  this  description,  he  shall 
%  be  deemed  guilty  of  a  misdemeanor,  and  the  sheriff  shall  in- 
form the  grand-jury  thereof. 


Chap.  99.]  eevenue.  521 

82.  The  sheriff  shall  forthwith  proceed  to  collect  said  taxes ;  Tax  collectors 
and  when  he  shall  collect,  by  his  deputies,  who  are  not  sworn,  **i°02T4i  %. 
or  others,  such  persons  shall  in  open  court,  or  before  a  justice 

of  the  peace  of  the  county,  take  an  oath,  faithfully  and  hon- 
estly to  account  for  the  same,  with  the  sheriff,  or  other  person 
authorized  to  receive  them. 

83.  If  any  sherift'  shall  die  during  the  time  appointed  for  If  sheriff  die, 
collecting  the  taxes,  his  sureties   may  collect  them;  and  for  JjJfj^'J.'jfiigg'i 
that  purpose  shall  have  all  the  powers  and  means  for  collecting  taxes.— R.  s.  c. 
the  same  of  the  collectors  and  tax  payers,  as  the  sheriff  would  ^°^'  ^'  *^' 
have  had  ;  and  shall  be  subject  to  all  the  remedies  for  collec- 
tion and  settlement  of  the  taxes  on  their  bond  or  otherwise, 

as  might  have  been  had  against  the  sheriff,  if  he  had  lived. 

84.  The  sheriff,  and  (in  case  of  his  death)  his  sureties  shall  Sheriff  allowed 
have  one  year,  and  no  longer,  from  the  day  prescribed  for  his  ut  oIl  k>^to\- 
settlement  and  payment  of  the  State  taxes,  to  finish  the  col-  lect.— R.  S.  c. 
lection  of  all  taxes;  but  this  extension  of  time  for  collection  i°2>^-**- 
shall  not  extend  the  time  of  his  settlement  of  the  taxes. 

85.  The  sheriff  shall  collect  the  taxes  as  they  are  set  down  shall  collect 
in  the  list,  and,  moreover,  shall  collect  of  all  persons,  whose '^™.'''''*'"'°" 

'  11111  •  1  1  unlisted  prop- 

taxables  are  not  listed,  double  the  taxes  imposed  on  the  same  erty. 
subjects;  and  as  to  any  land  not  listed,  which  may  not  have  ^|"°'^^|^J'^j^' 
been  assessed  at  the  last  assessment,  the  same,  in  estimating  its  value.— R. 
the  double  tax,  shall  be  deemed  to  be  of  the  value,  by  acre,  of  ^-  ''■  ^*^'  ^-  ^^• 
the  highest  valued  tract  adjoining  thereto. 

86.  Immediately  on  receivins:  the  tax  lists,  the  sheriff  shall  On  receiving 

•  •  ta.K  lists  slicriff 

advertise  the  fact,  and  that  he  holds  them  ready  for  inspection,  to  advertise 
He  shall  also  request,  therein,  all  persons  to  inform  him  of  any  'tem,  &c.— R. 

,  ,  ,  1  •    I  '     t-  u     r \     1  ■'   &.O.  102,6.46. 

taxables  which  may  not  be  listed. 

87.  For  the  more  efficient  collection  of  the  taxes,  the  sheriff  Sheriff  may 
at  any  time  from  the  delivery  to  him  of  the  lists,  till  the  first  _^y"^"(,°'j02' 
day  of  October  in  the  next  year,  may,  and  if  there  be  need,  s.  47,  48. 
shall  distrain  and  sell  the  property  of  the  tax  payer,  to  satisfy 

the  same ;  selling  first  his  personal,  and  then  his  real  estate. 

88.  If  any  person  liable  for  taxes  on  other  subjects  than  Tax  of  persons 
land,  shall  be  about  to  remove  from  the  county,  after  listing  move  to* be  col- 
time  and  before  the  period  for  collection,  the  sheriff  shall  make  lected  fortli- 

affidavit  thereof  before  the  clerk,  and  obtain  from  him  a  cer-  5^n'„"''~,'i" '''  '^' 

'  102,  s.  4y. 

tificate  of  the  amount  of  such  person's  tax,  and  forthwith  collect 
the  same. 

89.  If  any  person  be  liable  for  taxes  in  any  county  wherein  Tax  of  solvent 
he  shall  have  no  property,  but  shall  be  supposed  to  have  no'prnpertv'i'if 
property  in  some  other  county,  and  will  not  pay  his  tax,  the  the  county;  coi- 
shcriff"  shall  report  the  fact  to  the  county  court,  held  next  af-  ,futiun.  ^  "*" 
ter  the  first  day   of  October  ;  and  thereupon  the  court  shall 

direct  the  clerk  to  issue  a  feri  facias  to  the  sheriff  of  that 
county,  returnable  to  the  court  whence  it  issued,  for  such  tax 
and  the  costs  of  process  and  executing  the  same,  which  the 
sheriff  shall  execute  in  the  manner  of  writs  of  execution  in 
other  cases  ;  and  the  tax  collected  thereon  shall  be  paid  to 
44* 


522 


RETENTJE.  [CflAP.    99. 


the  clerk  of  the  court,  and  by  liim  paid  to  the  sheriff,  to  be  ac- 
counted for  as  other  taxes. 
£'naity''frt;:.-      ^0.    The    sale  under  distress    of  personal  estate  for   taxe.s, 
es,  howmiide.   shall  be  advertised  ten  days  previous  thereto,  at  three  public 
-K^S.c.  102,   places  in  the  district  wherein  the  delinquent' tax  payer  shall 
reside;  and  if  he  reside  not  in  the  county,  then  in  the  district 
where  the   taxables  were,  or  ought  to  have  been,  hsted  ;  and 
the  amount  of  tax  due  shall  be  stated  in  the  advertisements. 

howMduct'-  ^^-  '^'^^^  ^'^l^  °f  l*!"^  fo""  ^'I'^es  due  thereon,  shall  be  made 
od.  under  the  following  rules  :  — 

furn"tocou?t         (^•)   P^""  ^'^^^^^  ^^all  retum  to  the  court  of  pleas  and  quar- 

a  list  of  lauds,  ter-sessions  of  his  county,  held  next  after  the  hrst  day  of  Jan- 

^<^-  uary,  a  litit  of  the  tracts  of  land  which  he  proposes  to  sell  for 

taxes,  therein  mentioning  the  owner  or  supposed  owner  of  each 

tract,  and  if  such  owner  be  unknown,  the  name  of  the  last 

known  or  reputed  owner,  the   situation  of  the  tracts,  and  the 

To  be  read       amount  of  taxes  for  which   they  are  respectively  to  be  sold: 

aloud,  record-        u*ii*i.utii  ii        i.  •^t 

ed,  audput  up  wnicli  list  shall  be  read  aloud  in  open  court,  recorded  by  the 
R.  ToToTT  ^''^'"'^  upon  the  minutes  of  the  court,  and  a  copy  thereof  shall 
52,  53°'      '  *■  be  put  up  in  some  public  part  of  the  court  house. 
not'ifie7how     .    (^'^    '"■'.'^^  county  court  shall  order  the  clerk  of  the  court  to 
'       ■    issue  notice  to  every  person  whose  land  is  returned  as   afore- 
said; and  a  copy  of  the  notice  shall  be  served  by  the  sherifi' 
on  the  owner,  or  his  agent,  and  returned  to  the  next  couniy 
court;  and  if  the  owner  be  a  non-resident,  the  clerk  shall  pub- 
.  lish  the  same  in  some  newspaper  printed  in  the  State  ;  in  which 

land  K giT-  advertisement  shall  be  mentioned  the  situation  of  the  land,  the 
iSrs'^M— ■  ®^''*'^'^®  *^"  °^  "*^^''  which  it  lies,  the  estimated  quantity,  the 
I860,^e.  lis.      "ames   of  the  owners  when   they  are  known,  and  the  names 

of  the  tenants  or  occupiers  of  the  same. 
J^^''«^^^ojd  in         (3.)    The    sale  shall  Ije  made  within    the  two    terms  next 
ter^retunied,"    Succeeding  the  term  when  the  returns  are  made  of  lands  to  be 

r'io2'~5i^'   ^°''^'  '^"*^  ^*  ^"*^'^  P.''^^*^  "^  ^'^®  county  as  is  directed  for  sale  of 
'  ^'     •      land  under  execution  ;  and  the  whole  expense   attendant  on 

the  advertising  and  sale,   shall   be  chargeable    on   the  lands, 

and  raised  at  the  sale. 
Whole  tract  (4.)    The  whole  tract  or  contiguous  body  of  land,  belonging 

Who  deemed  to  one  delinquent  person  or  company,  shall  be  set  up  for  sale 
R"'.^T'■~;!^■  ^t  ^'"^  ^''^"^^  ti'"'^>  and  the  bid  shallbc  struck  off  to  liim  who 

O.  C.  lUJ,  S.  66.         •11  .  ,  ,         /•     I  'III. 

will  pay  the  amount  of  taxes,  with  all  the  expenses  aforesaid, 
for  tile  smallest  part  of  the  land. 
Rt^LmdTe™       ^^'^    ^'^*  ^'^^    second  term  next  succeeding  the  term  when 
&;c.  '    'the  returns  arc  made  of  lands  to  be  sold,  the  sheriff  shall  re- 

turn a  list  of  the  tracts  actually  sold  for  taxes,  the  quantity  of 
the  tract  bought  and  to  be  laid  off,  the  name  of  the  purchaser, 
and  the  sum  paid  to  the  sheriff  for  taxes  and  charges  ;  which 
Proceedings  on  ^^^^  ^hall  be  read  aloud  by  the  clerk  in  open  court, "shall  be  re- 
r m'Tes '^^   ^"^'^^'^  '"  *'"-'  "linutes  of  the  court,  and  a  copy  thereof  shall  be 
'^'     ■      put  up  by  the  clerk,  during   the  term,  in  some  public  part  of 
the  court  house. 


Chap.  99.]  revenue.  523 

92.  The  land  of  an  infant,  lunatic,  or  person  non  compos  Lands  of  in- 
OT(?«<(>,  shall  not  be   sold  for  taxes.     Provided,  however,  \\\'ax[''"l''^^°^l^°^ 
where  land  may  be   owned  by  such  persons,  in  common  with  Land  held 
another  or  others  free   of  such  disability,  the  share  or  interest  ■g",^"]J'^JJfgQQg 
of  the  persons  so  free,  shall  be  subject  to  be  sold  for  the  taxes  how  sold. 
due  on  the  whole  tract;  but  before  setting  apart  the  quantity  to^crtitTe'ui 
bid  otr,  the  purchaser  by  petition  shall  cause   the  tract  to  be  s"ch  case.— 
divided  among   the  tenants  in  common,  and  the  share  or  in- 33    ••'•i''^''- 
terest  of  the  defaulting  tax  payer  being  set  apart,  the  pur- 
chaser may  proceed  to  lay  off  on  such  share,  the  quantity  by 

him  bid  off,  and  secure  the  title  as  is  before  provided :  and 
the  time  necessarily  employed  in  procuring  such  division, 
shall  not  be  reckoned  against  the  purchaser. 

93.  The  owner  of  land  sold  for  taxes  under  section  ninety-  Lands  may  be 
one  of  this  chapter,  his   heirs,  executors,  or  administrators,  or  one  year. 
any  other  person  for  them,  may  redeem  the   same   from   l he  ^'°<'?°f re- 
purchaser at  any  time  within  one  year  after  the  sale  by  paying  s.  c.  102,  s.  57. 
or  tendering  in  payment  to  the  purchaser,  or  to   the  county 

court  clerk  of  the  county  where  the  land  lies,  the  full  amount 
of  the  price  paid  to  the  sherilF,  and  twenty-five  per  cent  thereon. 

94.  If  the  land  so  sold  shall  not  be  redeemed  within  the  Purchaser  to 
period  aforesaid,  the   purchaser  may  at  the  end  of  that  time,  ofi-'^'^u^'',"tu '"'^ 
select  the  quantity  of  land  struck  off  to  him,  out  of  any  part  bought  in  a 
of  the  tract  or  body  of  which  the  same  was  bid  off;  the  said  &"— 'E's'°e^' 
quantity  to  be  laid  off  in  one  compact  body,  as  nearly  in  aiu2,s.  58." 
square  as  may  be,  and  adjoining  to  some  of  the  outlines  of 

the  whole  tract  or  body  of  land. 

95.  Witliin  one    year  after  the  time    of   redemption  shall  L""'""  be  sur- 
have  passed,  the   purchaser  at  his  own  cost,  his  heirs,  execu- after  time  6f 
tors,  or  administrators,  or  any  other  for  them,  may  procure  the  "■deeming. 
quantity  bid  off  to  be   surveyed  by  the  county  surveyor,  who  veVed.— R.  s. 
shall  make  out  and  certify,  under  his  hand,  a  fair  plat  of  the  c.  102,  s.  58, 59. 
survey  with   the  courses   and    distances  fairly  and   truly  set 

forth  ;  and  if  the  county  surveyor  on  request,  shall  fail  to  make 
such  survey  and  plat,  then  any  other  surveyor  may  make  and 
certify  the  same. 

96.  The  sheriff  on  being  presented  with  such  certified  plat,  Peed  to  be 
within  the  year  after  the  time   of  redemption  is  passed,  shall  ™r.''s^^c.^102" 
convey  to  the  purchaser  the  land  therein  contained.  »■  so. 

97.  Where   by  any  provision   of  the  law,  any  sheriff  or  of-  Proceedings 
ficer,  other  than  the  person  who  sold  for  the  taxes,  shall  be  ranTeys'than' 
authorized  to  execute  a  conveyance  for  the  land,  the  purchaser  the  eheriir  who 
shall  apply  to  the  county  court,  and  on  showing  to  the  court  102,  sTus. 
that  such  purchase  had  been  made,  and  the  price  paid  to  the 
sherilTwho  sold,  and  that  he  has  paid  the  other  taxes  since  ac- 
cruing thereon,  the  court  shall  direct  the  present  sheritFto  ex- 
ecute a  deed,  on  the  purchaser  producing  to  him  a  certified 

plat  and  survey,  as  is  provided  for  in  sections  ninety-five  and 
ninety-six  of  this  chapter. 

98.  The    purchaser   of  land    sold    for   taxes,  under  section  f'"'';'''^/'')' '0 
ninety-one  of  this  chapter,  shall  be  considered  as  taking  and  bacirinx'.— R. 


102,6.64. 


524  EEVENTJE.  [Chap.  99. 

holding  the  same  subject  to  all  the  taxes  accrued  from  the  first 
day  of  April  in  the  year  preceding  the  purchase. 
Penalty  on  99.    If  any  sheriff  or  clerk  shall  fail  to  perform  any  of  the 

clerks  "omit-  duties  prescribed  in  sections  ninety  and  ninety-one  of  this 
ting  duties  chapter,  he  shall  forfeit  and  pay  to  the  person  aggrieved  one 
sections \iiiety  hundred  dollars,  and  shall  moreover  be  liable,  he  and  his  sure- 
andninety-one.  ties,  ou  his  bond,  for  all  such  damages  as  any  one  may  sus- 
64.  '  '  '  '  tain  by  reason  of  such  default. 
Penalty  onco.        100.    If  any  county  surveyor,  being    required  within    two 

sm-ve.vor  fail-  ,,  o      "ii  i        1         r    n  i      j_  ii 

jng  to  survey,   months  after  the  survey  may  be  lawfully  made  to  survey  the 
— K.  s.  c.  1U2,  land  bid  ofi'  at  a  sale  for  taxes,  shall  wilfully  fail  to  do  so  within 
four  months  after  such  request,  he  shall  forfeit  and  pay  to  the 
purchaser,  or  his  executor,  or  administrator,  one   hundred  dol- 
lars. 
buyerfftTolfe        l^^'    ^^  "°  person  will  bid  a  less  quantity  than  the  whole 
bid  less  than     land,  for  the  taxes,  the  bid  shall  be  deemed   the   bid  of  the 
s'hen'fflo'.''e-°'"  ^^^^6,  and  the  land  shall  be  struck  off  to  the  State  as  the  pur- 
port to  county    chaser;  and  the  sheriff  shall  report  in  writing  to  the  county 
Pioceedinffs      court,  at  the  time  he  returns  the  list  of  lands  sold  for  taxes, 
thereon.— K.  S.  what  and  whose  lands  are  thus  struck  off  to  the  State,  describ- 
c.  102,  s.  60.      jjjg  them  particularly;  which  report  shall  be  recorded  on  the 
minutes  of  the  court,  and  thereupon  the  title  of  said  lands  shall 
be  deemed  to  have  been  vested  in  the  State  from  the  time  of 
purchase. 
Copies  of  re-         102.    The  clerk  shall  within  twenty  days  after  the  return  of 
spates  to'^becer-  ^^'^  sheriff's  report  of  the  land  sold  to  the   State,  make  and 
titled  by  clerk   certify  two  copies  thereof ;   one  of  which  he  shall  transmit  to 
Ind^^e^ffy.'  ^^e  comptroller,  and  the  other  deliver  to  the  sheriff,  (or  to  his 
I'roceedings      sureties,  when  they  act,)  who   shall  deposit  the  same  with  the 
OiereuponpR.  gecj-gtary  of  State,  to  be  by  him  recorded ;  and  the  secretary 
02.        '  shall  grant  to  the  sheriff  a  certificate  setting  forth  what  and 

whose  lands,  and  the  quantity  and  value  thereof,  have  been 
sold  for  taxes,  and  struck  off  to  the  State. 
Sheriff  failing  103.  If  any  sheriff  or  other  person  authorized  thereto,  shall 
OTdqmsit'co'i'y  sell  for  taxcs  and  strike  off  any  land  to  the  State,  and  shall 
witli  secretary,  fail  duly  to  report  the  same  to  the  county  court,  or  to  duly  ob- 
wUh  la.ouo"-  ^'^'"  ^"^^  deposit  a  copy  thereof  with  the  secretary  of  State, 
B.  S.  c.  102,  s.  the  comptroller  shall  in  his  report  to  the  treasurer  charge  such 
*^'  sherifl'  (or  other  person  acting  in  his  stead,)  with  the  sum  of 

two  thousand  dollars,  and  the  treasurer  shall  recover  the  same 
as  unpaid  tax. 
Lands  bid  off        104.    Lands  bid  off  for  the  State  maybe  redeemed  in  like 

by  state  re-        , .  j  i       ii  i  i  i    j  •  ii 

deemabie;— on  time,  and  under  the  same  rules  and   regulations  as   those   pur- 

R''s'""io2~   chiised  by  individuals,  except  that  the  payment  (which   shall 

62.  '   '      '  "  be  double  in  amount  of  all  the  taxes  for  which  they  were  sold,) 

shall  be  made  to  the  treasurer,  and   on   his  certificate  thereof 

the  secretary  of  State   shall,  on   being  paid    his  fees,   issue  a 

grant  to  the  original  proprietor,  his  heirs,  or  assigns,  and  at  the 

same  time  shall  certify  the  payment  to  the  comptroller. 

^anTRn/wb-       ^^'^-    Lands  bid  off  for  the  Stale  shall,  as  to  the   person  for 

'  whose  tax  the  same  is  sold,  his  heirs,  or  assigns,  be  liable  to  be 


Chap.  99.]  revenue.  525 

entered  as  vacant  land;  subject  nevertheless,  to  the  right  of  re- jccUo  entiy-— 
demption  within  the  time  prescribed.  tij."   '      ' 

106.  When  land   shall   be  sold  for  its  tax,  and  the   sheriff  o^ishcnftr-f^^^ 
shall  die,  or  otherwise   become  unable  to   report  his  sales,  his  gm^g;-;,,  ,n,\y 
sureties  may  report  the  same  within  the  time  prescribed  ;   and  report  sales, 
shall  proceed  as  to  land  bid  oil'  by  the  State,  in  the  same  man-  ^'''' 

ner  as  the  sheriff  might. 

107.  The  sheriff,  and  all  receivers  of  public   moneys,  shall  S'.ieriff  and  all 
yearly  settle  their  accounts  with  the  comptroller,  between  the  t,  settle  with 
last  day  of  June   and  the  first  day  of  October,  (unless  where  cimptroiier 

*',  ,.  ,  1  ■    11       T         i     1   i      1       between  June 

the  settlement  of  such  persons  may  be  specially  dn-ected  to  be  and  Oct. 
made  in  another  manner,  or  at  another  time,)  so  thfit  it  may  <^'™i't™i'CT  t" 

'  ,  .    ,  •    i      ii        X  repin-t  to  treits- 

be  known  what  sum  each  one  ought  to  pay  into  the  treasury  :  uror  amount 
and  the  comptroller  shall  forthwith  report  to  the  public  treas-  ^"|'^'°'jo2''t^' 
urer  the  amount  due  from  each  accountant,  setting  forth  therein  eo.  ■ 
(if  a  sheriff's  account,)  the  net  amount  of  each  species  of  pub- 
lic tax :  and  thereupon  the    treasurer  shall  raise   an   account 
against  such  person  and  debit  him  accordingly. 

lOS.    The  sheriff  in  making  his  settlement  as  aforesaid,  shall  Sheriff  to  ren- 

1.  .  I-         ■■•  1  i.,i         J'  ji  T  re  J.  '!'''■  '0  comptrrr 

designate  in  a  list   by  him  rendered  at  the  time,  the   dilierent  the  amount  of 
sources  from  which  were  raised  the  taxes  accounted   for  by  ^^^'^ '^'"'l  °^ 
him,  and    the    particular    amount  of  tax  received  from  each  Acopy  certifi- 
source  :  and  the  comptroller  shall  give  to  each  sheriff  a  certified  ^^^^^y^  Xposit- 
copy  of  such  list,  which  the  sheriff  shall  deposit  with  the  clerk  ed  with  the 
of  the   county  court  of  his  county,  for  public  inspection.     I"  \vh*t  giieriffs 
such  settlement  the  sheriff  shall  be  charged  with  the  amount  to  be  charged 
of  public  tax  as  the  same  appears  by  the  tax  lists  transmitted  J^i)'*;"^^;  ''"  °" 
by  the    clerk  to  the  comptroller :  also,  with  all  double   taxes, 
and  taxes  on  unlisted   projjerty,  by  him  received,  and  with  all 
other  tax  which   he  may  have  collected,  or  for  which  he  is 
chargeable. 

109.  And  he   shall  be   credited,  (1.)  With   the  amount  of  With  what 
State  tax  on  land  bid  off  by  the  State  with  the  costs  attend- ?p°j.'o^j  (.^ml 
ant  on  the  sale  and  procuring  the  title,  and  with  commissions  bought  by 
on  the  whole  including  the  county  revenue,  on  producing  the  i„soivente  al- 
certificate  of  the  Secretary  of  State,  as  is  provided  in  section  lowed  by  court. 
one  hundred  and  two  of  this  chapter.     (2.)    With  all  insolvent  ~6.2',i3^'^75.  II 
taxables  allowed  by  the  court,  as  hereinafter  provided  :  and  1S44,  c.  is. 
where  the  sheriff  shall  be  required  to  settle  before  such  taxables 

are  allowed,  he  shall  be  credited  with  them  in  the  next  year's 
settlement:  or  the  sheriff  may,  at  any  time  thereafter,  on  pro- 
ducing a  certificate  of  such  taxables  allowed,  procure  an  order 
from  the  comptroller  on  the  treasurer,  for  the  amount  thereof. 

110.  The  sheriff  shall  return,  upon  oath,   to    the  court  of  J'J^'gi^^J'™''^' 
pleas  and  quarter-sessions  of  his  county,  at  the  term  next  pre-  sheriff  from 
ceding  the  time  at  which  he  may  settle  with  the  comptroller,  a  <=''',':'\' ™''  "" 

,.  ?     ,,  ,  .    ,     1  *^  1  ■        ^   r  1  11      unlisted  taxa- 

list  of  all  moneys  which  he  may  have  received  from  the  clerics  bies,  to  be  ro- 
of court,  or  as  double  taxes,  from  taxes  imposed  on  unlisted  J,"'jl"'|,Vfn,.e  o'^ 
property,  or  on  merchants,  merchant-tailors,  jewellers,  retailers  tober.— R.  s. 
by  the  small  measure,  tavern-keepers,  billiard  tables,  howling- c^J02j^»^,^s.— 
alleys,   stage-players,  slight  of  hand  performers,  rope-dancers,  usil 
tumblers,  wire-dancers,  circus  riders,  equestrian  performers,  ex- 


526 


REVENUE.  [ClIAP.    99. 


hibiters  of  natural  or  artificial  curiosities,  apothecaries,  clru'»- 
gists,  non-resident  owners  of  stud-horses  or  jackasses,  horses, 
and  mules  brought  into  the  State  for  sale,  sellers  of  carriages, 
buggies,  and  other  riding  vehicles,  persons  keeping  establTsh- 
ments  for  the  sale  of  such  vehicles,  peddlers,  sellers,  or  persons 
offering  to  sell  by  sample,  brokers,  insurance  companies,  agen- 
cies of  banks  incorporated  out  of  the  State,  ex  hibiters  of  me- 
nageries, singers,  dancers,  Ethiopian  serenaders,  performers  for 
reward  on  musical  insfruments,  and  other  exhibitions  for  pub- 
lic amusement  for  reward,  and  on  any  and  all  other  subjects 
for  which  he  ought  to  account. 

tosetfor'h!''  ^^^-  '^'"^  ^'^^  '''^"  ^'^t  ''0'"^'^  t'l*^  "^me  of  each  person  who 
To  be  read,  re-  may  have  paid  any  such  tax,  its  amount,  and  for  what  it  was 

«n?la1dTefofe  P'^''^' '  ^^''"'^'^  ''''^^'  '^*"  '"^'^^  ^'^"^  '"  op^'»  ^ourt,  and  shall  be 

grand-jury.—  recorded  on  the  minutes  of  the  court  by  the  clerk,  who,  during 

k  S.  c.  102,  s.  the  space   of  six  months   after  its  retuni,  shall  keep  a  copy 

thereof  set  up   in   some  public  place  in  the  court  house,  and 

shall   lay   before   each   grand-jury,  during   that  time,  a   copy 

of  the  same. 

^i'es'fiied'wa      ^^^-    ^^  *'^°  ^?^'"^  aforesaid  of  the  county  court  shall  be  held 

cierk'in  vaca-    before  the   sheriff  can   complete  and  return  the  collection   of 

ioT's~69'  ^'  ''■  ^'^^  ^^^^^  ^^^^  aforesaid  ;  or  if,  from  any  other  cause,  the  sheriff 

'  ■    ■         have  failed  to  make  his  return   at  that  court,  then  the  list  of 

said  taxes  may  be  returned  and  filed  with  the  clerk  of  the  court 

during  vacation,  and  sworn  and  subscribed  in  the  presence  of 

the   clerk  before  two  justices   of  the   county ;  and  the  same 

shall  be  recorded  on  the  minutes  of  the  court,  and  a  copy  set 

up  and  laid  before  the  grand-jury  as  aforesaid. 

Sheriff  to  deliv-      113.    The  clerk,  on  application  of  the  sheriff,  shall  deliver  to 

comptroller"  or  ^^'"^  ^  certified  copy  of  such  return,  which  the  sheriff  shall  de- 

wUh'S'i^ono  _^^^^^  ^°  ^^^  comptroller  when  he  settles  his  accounts.     And  if 

F.' S.'c' 102,  s.^'iy  slieritr  shall  fail  to  deliver  such  copy  to  the  comptroller, 

70, 71.  the  comptroller  shall  add  to  the  taxes,  for  which  such  sheriff  is 

liable,  one  thousand  dollars,  and  so  report  his  account  to  the 

treasurer. 

rS' forTio-  ^^^'  ^^  ^"^  ''^^''''^  ^'^'^'^  ^'^^^  ^°  perform  any  of  the  duties  re- 
MnK  sL-t'ions  q"ired  in  sections  one  hundred  and  eleven,  one  hundred 
-Vs'c"i02  ^"'^  ^^velve,  and  one  hundred  and  thirteen  of  this  chapter,  or 
6. 73'.    ■ "'     ''  **''aU  falsely  certify  any  such  return  of  the  sheriff,  he  shall  be 

deemed  guilty  of  a  misdemeanor,  and  on   conviction  shall  be 

removed  from  office. 
derk'fainn  to      ^^'^"    ^^  °'"^  register  Or  clerk  shall  fail  to  pay  to  the  sheriff 
settle  tax  witii  ^"7  tax  which  he  ought  to  pay,  the  county  solicitor,  at  the  in- 
sllod -'i846     ^*'^"''"*^  °^  ^'^"^  sheriff;  shall   bring  suit  on    his    bond,  and  shaU 
c.  75'.  '    recover,  m  addition  to  the  taxes  withheld  or  not  accounted  for, 

one  hundred  dollars  ;  and  the  whole  recovery  shall  be  paid  into 

the  treasury  by  the  sheriff. 

v,'ie"''in'whar"    •  ^^^'    ^°  '"solvent  taxables  shall  be  credited  to  the  sheriff  in 

eate aMoweii by  '''»  settlement  with  the  comptroller,  but  such   as  shall  be  al- 

ri'ol' Tk  76  ^°^^''''^'  ^^  *'^°  county  court ;  a  list  whereof,  containing  the  names 

'  ■ '  '    •  and  amounts  and  subscribed   by  the  sheriff",  he  shall  return  to 

the  court  at  some  term  preceding  said  settlement;  and  the 


Chap.  99.]  revenue.  527 

same  shall  be  allowed  only  on  his  making  oath  that  he  has 
been  at  the  chvcUing-house  or  usual  place  of  abode,  of  each  of 
the  tax  payers,  and  could  not,  there  or  elsewhere  in  the  county, 
find  property  wherewith  to  discharge  his  taxes,  or  such  part 
thereof  as  is  returned  unpaid;  and  that  the  persons  contained 
in  the  list  were  insolvent,  at  and  during  the  time  when,  by  law, 
he  ought  to  have  endeavored  to  collect  their  taxes.  Such  list 
shall  be  recorded  on  the  minutes  of  the  court,  and  a  copy 
thereof,  within  ten  days  after  its  return,  shall  be  set  up  by  the 
clerk,  in  some  public  part  of  the  court  house. 

117.  If  any  sherifl'  shall  return  to  court,  as  insolvent,  the  Penalty  on 
name   of  a  person  who   is  not  listed,  or  has   paid   his   taxes  ^'jTfiL'e  li'su" 
for  that  year,  or  shall   by  himself  or  his  deputy,  collect  from  onnsoivcnts. 
any  person  his  tax  for  the  year,  for  which  he  has  been  returned  ^.g  tiTecorU^ 
an  insolvent,  without  accounting  for  the  same  ;  or  if  any  clerk  and  setup  lists. 
shall  fail  to  record  or  set  up  the  return  as  required  in  the  pre-  ~^'  ^j  °'  ^°^' 
ceding  section,  the  person  so  offending,  shall  forfeit  and  pay  to 

the  State  one  hundred  dollars,  and  the  county  solicitor  shall 
prosecute  a  suit  for  the  same. 

118.  Every  sheriff',  (or  other  person  allowed  by  law  to  col-  Oath  of  sherifl', 
lect  and  accjunt  in   his   stead,)   on  settling  his  accounts  with  comptroller!— 
the  comptroller,  shall  take   and  subscribe  the  following  uath  :  R- S.  c.  102, 3. 
I,  A.  B.,  sheriff  of  the  county  of  do  on  this  the  ^*' "'  ^*- 
day  of                 one  thousand  eight  hundred  and             make 

oath  that  the  list  now  given  in  by  me,  is,  to  the  best  of  my 
knowledge  and  belief,  complete,  perfect,  and  entire,  and  doth 
contain  the  full  amount  of  all  moneys,  by  me,  or  for  me  re- 
ceived, or  which  ought  to  have  been  received,  on  account  of 
the  public  taxes  for  the  year  one  thousand  eight  hundred  and 
,  on  listed  and  unlisted  property ;  and  all  double  taxes, 
and  all  taxes  received  from  clerks  of  courts,  and  from  insol- 
vents not  heretofore  accounted  for ;  and  all  taxes  received,  or 
which  ought  to  have  been  received,  from  any  other  and  all 
other  sources  whatsoever.  And  I  do  further  make  oath,  that 
if  I,  or  any  person  for  me,  shall  hereafter  collect  any  unpaid 
tax  now  due  and  not  rendered  in  said  list,  I  will  render  a  true 
account  thereof,  within  one  year  after  collecting  the  same. 

119.  If  the  comptroller  at  any  time  shall  have  just  cause  Comptroller 
to  suspect  that  any  sheriff,  or  other  person  accounting  in  his  ^^^^jf '?'. 
stead,  may  have  made  a  false  return  or  sworn  falsely  in  any  about'lho  reve- 
matter  relative  to  the  collecting  or  accounting  for  any  tax,  he  i™e,jo  inform, 
shall  thereof  inform  the   officer  prosecuting  in   the   superior  102,  s.  72. 
court  of  the  county  wherein  the  offence  was  coiumitted,  who 

shall  take  such  steps  as  public  justice  may  demand. 

120.  The  sheriff  for   his  services   in  collecting  and  paying  Commissionf 
the  public  taxes  into  the  treasury  shall  receive  a  commission  olj^eftbmeii't'''" 
of  three  per  cent,  on  the  net  amount  received  by  him  from  the  —  ii.  S.  c.  102, 
clerk  for  taxes  imposed  by  the  seventh  section ;  and  five  per  '•  *"• 

cent,  on  the  net  amount  of  taxes  collected  from  every  other 
source,  to  be  deducted  in  the  settlement  of  his  account  with 
the  comptroller. 


528  REVENUE.  [Chap.  99. 

Furtiicrcora-        121.    And  for  his  settlement  with  the  treasurer,  he  shall  be 
S?  ot^oT  sTsi!  P'^''^  t)y  the  treasurer  three  dollars  for  each  day  he   may  be 
necessarily  engaged  therein  ;  and  two  dollars  for  every  thirty 
miles  of  twice   the   estimated  distance  from    his   home  to  the 
seat  of  government,  by  the  most  usual  common  highway. 
Sheriff  failing       122.    In  every  case  of  failure  by  a  sheriff  or  other  accounting 
troUeftorepOTt°^i^"">  t"^  *'^**''^   his  accounts  within  due  time,  or  to  take  the 
his  account,      oath  required  on   his  settlement,  the   comptroller  shall  fort h- 
^atld?"^"        with  report  to  the  treasurer  the  account  of  such  sheriff  or  offi- 
Treasurer  to     cer,  deducting  therefrom  nothing  for  commissions  or  insolvents, 
Igainiu'ii?'"'  but  adding  thereto,  one  thousand  dollars,  for  the  amount  of 
niul  sureties.— taxes  supposed  not  to  appear  in  the  lists  transmitted  by  the 
86  In.'''  ^"^'^'  clci'k  :  and  if  the  whole  amount  be  not  paid,  the  treasurer,  on 
motion  of  the  attorney-general  in  the  superior  court  of  Wake 
county,  at  the  first  court  after  the  default  shall  have  occurred, 
shall  recover  judgment  against  such  defaulting  officer  and  his 
sureties,  for  the  amount  reported  against  him,  without  other 
notice  than  is  given  by  the  delinquency  of  the  officer. 
Clerk  to  fur-         123.    And  to  the  end  that  their  obligation  and  names  may 
wi'th  certme'd    ^^  kiiowii,  the  clerk  of  the  county  court,   at  the  same  time 
copies  of  sher-  when  he  transmits  to  the  comptroller  the  tax  lists,  shall  traiis- 
derVnaity  of  ^i*-  ^0  '^'^'^^  ^'^o  ^  copy  Certified  under  the  seal  of  the  court,  of 
Si.ooo.  — R.  s.  the  bond  of  the  sheriff,  upon  pain,  for  his  default,  of  forfeiting 
"■    ''^'     '      to  the  State  one  thousand  dollars;  which  the  treasurer  shall 
and  is  hereby  specially  charged  to  collect  in  like  manner  and 
at  such  time  as  is  provided  in  the  preceding  section. 
Register  to  for-      124.    The  register  of  every  county,  yearly,  on  or  before  the 
wi'ti'i  certffied    ^^^^  ^^Y  o^  September,  shall  transmit  to  the  comptroller  a  certi- 
copy  of  cierii's  tied  copy  of  the  bond  of  the  clerk  of  the  county  court,  as  the 
penaity"of^"^      same  is  registered,  upon  pain  of  forfeiting  for  his  default  to 
$1,000.-1850,  the   State  one  thousand  dollars  ;  which  the  treasurer  is  hereby 
specially  charged  to  collect,  in  like  manner  and  time,  as  is  pro- 
vided in  section  one  hundred  and  twenty-two  of  this  chapter. 
In  suits  against      125.    In  all  suits  directed  by  any  law  to  be  instituted  on 
cS^  copies    motion  of  the  attorney-general,  at  the  instance  of  the  treasurer 
to  be  evidence,  or  comptroller,  against  any  sheriff  or  clerk  and  his  sureties,  a 
Zii.  ^'  '^'  ^°^'  "^^Py  °^  *'"^  bond  of   such  officer,  certified  as  aforesaid  and 
sent  to  the  comptroller,   and  by   the  comptroller  certified  to- 
gether with  the  default  under  his  hand,  shall  be  deemed  sulli- 
cicnt  evidence  of  the  execution  of  such  bond  and  the  default 
of  the  officer,  to  allow  the  judgment  to  be  entered. 
If  register  fail        126.    And  in  case  of  the  default  by  the  register  to  duly  cer- 
cop™"lim^        ^ify  ^"<i  transmit  the  bond  of  the  clerk  in  proper  time,  the 
comptroller  to   comptroller  shall  forthwith  proceed  to  procure  such  certified 
procee  .  cojjy,  and  also  a  copy  of  the  bond  of  the  register,  cerlilied  l)y 

the  keeper  thereof,  and  shall  proceed  in  the   manner  herein- 
before provided  against  them  and  their  sureties,  at  the  first 
superior  court  in  Wake  after  said  copies  shall  be  procured. 
Penalties  on  127.    In  every  case  of  default  by  any  clerk,  sheriff,  or  justice 

clerks  and  shcr-       -     ■  ...  ...  .'.         .»         _      _  .       . 


ills  for 


ii'deniu'iu  °^  the  peace,  in  the  discharge   of  any  of  Ihe  duties  by  11 


nut  specially     chapter  imposed  on  any  of  them,  where  no  penalty  is  provided, 


Chap.  99.]  ke venue.  529 

the  defaulting  officer  shall  forfeit  and  pay  to  the  State,  for  piwi.led  for. 
each  default,  one   hundred  dollars.     And  all  the  penalties  by  cOTei-ecfb™" 
this  chapter  imposed   on  such  officers  for  the  sole  use  of  the  treasurer  on 
State,  may,  when  there  is  no  special  mode  provided  for  recov-  '^"loi'fsf'^' 
ering  the  same,  be  recovered  in  the  name  of  the  State,  at  the 
instance  of  the  treasurer  on  motion  of  the  attorney-general,  or 
any  of  the  solicitors  of  the  State. 

128.  The  certificate  of  the  treasurer  or  comptroller  of  any  Certificate  of 
matter  of  default  in  any  of  said  officers  occurring  at  the  office  'o'^mp'tv "^  "nd 
of  the  comptroller  or  treasurer,  and  copies  of  any  papers  in  copies  of  office 
said  offices  duly  certified  by  the  proper  Jteepcr  thereof,  shall  Eel'- il": 
be  admitted  as  evidence  in  any  suit  or  prosecution  whatso-  c.  102, 3. 72. 
ever,  against  them  or  others,  and  about  any  other  matter  what- 
soever. 

129.  The  treasurer  may  on  motion  obtain  judgment  in  any  Debts  due  the 
court  of  record  against  any  person  indebted  to  "the   State,  in  ererronraotlon. 
the  same  manner  and  under  the  same  rules  and  regulations —K- «.  c.  102, 
which  are  prescribed  in  cases  of  delinquent  sherifls,  and  the  ''  ^^' 
court  shall  award  execution,  though  the  amount  of  the  claim 

be  within  the  jurisdiction  of  a  justice  of  the  peace. 

130.  The  sheriff  shall  specify  in   his  receipts  to  tax  payers,  Sheriff's  re- 
the  amount  of  State  tax  and  the  amount  of  county  taXj'sep-  separately**'^ 

arateiy.  county  and 

131.  The  president  and  directors  of  the  Cape  Fear  and  flx^on  profits 
Deep  River  Navigation  Company  shall  pay  to  the  public  treas-  ot^Deep  River 
ury,  on  the  first  Monday  of  January,  eighteen  hundred  and  s1nid.fg°rm.d.- 
fifty-six,  and  annually  thereafter,  until  the  bonds  issued  under  is54,  c.  5, s.  ii. 
the  authority  of  the  act  of  eighteen  hundred  and  fifty-four, 

chapter  five,  entitled  "ylw  Act  to  authorize  the  Cape  Fear  and 
Deep  Rii-er  Navigation  Compamj  to  issue  bonds,  and  for  other 
pvrposes,"  shall  have  been  paid,  one  per  centum  of  the  net  profits 
of  said  company,  to  be  by  him  invested  in  State  securities; 
which,  with  the  interest  annually  accruing  thereon  reinvested, 
shall  constitute  a  sinking  fund,  which  shall  be  applied  to  the 
payment  of  the  principal  of  said  bonds,  as  they  severally  fall 
due. 

132.  A  tax  of  two  cents  per  ton,  on  all  coal  that  shall  be  Tax  on  coai 
shipped  and  conveyed  from  the  mines  on  Deep  river,  shall  be  sai j 'fund''— ' °* 
annually  levied,  and  paid  as  other  taxes  of  the  State  are  paid,  1804,  c.  5', s.  12. 
and  shall  be  eoUeeted  by  the  sheviff  of  the  county  of  Cha^hn.in 

for  the  time  being,  and  paid  to  the  public  treasurer;  and  when 
received,  shall  be  invested  and  reinvested,  as  prescribed  in  the 
preceding  section,  and  shall  constitute  a  sinking  fund  for 
the  payment  of  the  principal  of  said  bonds,  and  .shall  be 
applied  by  the  treasurer,  as  prescribed  in  said  section  ;  and  ' 
when  the  debts  and  liabilities  of  the  company  shall  have  been 
discharged,  the  said  tax  shall  constitute  a  part  of  the  revenue 
of  the  State. 


45 


530 


KIVERS   AND    CREEKS. 


[Chap.  100. 


Sect.  1.    WTiat  not  exempt,  3  JIur.  244. 

Sect.  2.  "  Heal 2>roperli/,"  what,  9  Ire.  81.  Wlio  to  pay  land  tax;  landlord  or  tenant, 
11  Ire.  624. 

Sect.  7.   Bos.  Eq.  43,  2  Jones,  Eq.  51. 

Sect.  34.    Constilntiwinl,  1  D.  &  B.  19. 

Sect.  81.    What  sheriff  to  receive  lists:  old  or  new,  1  Dev.  463,  lb.  451. 

Sect.  91.  (1.)  What  a  purchaser  mast  sliow:  that  tuxes  >cere  due,  1  Jones,  119,  4  D. 
&  B.  363,  lb.  386,  3  Ire.  Eq.  131,  3  Dev.  432,  4  lb.  649,  1  Mur.  311,  1  Car.  L.  R.  511, 
2  Jones,  59.  Sale  after  tender,  3  Hawks,  283.  When  tax  due  imparl  only,  N.  C.  7  K.  41, 
4  Dev.  549.     Sheri^'s  deed  color  of  title,  Bus.  303.     (6.)  6  Ire.  129. 

Sect.  101.   5  Ire.  344,  4  De%'.  549,  2  Hrtwks,  17. 

Sect.  112.  2  Dev.  524. 


CHAPTER   100. 


RIVERS   AND  CREEKS. 


Sectiok 

1.  County  courts  may  appoint  commis- 

Bioners    to    examine    streams,    and 
make  improvements. 

2.  Overseers  to  be  yearly  appointed  by 

county  court ;  their  duty. 

3.  Justices  may  direct  flats,  SiC,  to  be 

procured. 


4.  Power  of  county  courts  of  Jolmston, 

Wayne,  &c.,  as  to  Nouse  river. 

5.  Streams  to  be  laid  ofl'  into  districts. 

One  fourtli  to  be  left  open  for  pas- 
sage of  fish. 

6.  Obstructing  boats  by  felling  trees,  &c., 

misdemeanor. 


Co.  courts  may 
appoint  cora- 
m'rs  to  ex- 
amine streams, 
and  make  im- 
provements.— 
E.S.  c.  103,  s.  1. 


Overseers 

appointed; 
yearly  by  co. 
court:  their 
duty.— U.  S. 
c.  103,  s.  2.— 
1844,  c.  66. 


1.  Where  any  inland  river  or  stream  shall  run  through  the 
county,  or  be  a  line  of  their  county,  a  majority  of  the  justices 
of  the  court  of  pleas  and  quarter-sessions  of  the  several  coun- 
ties may  appoint  commissioners  to  view  such  river  or  stream, 
and  make  out  a  scale  of  the  expense  of  labor,  with  which  the 
opening  and  clearing  thereof  will  be  attended  ;  and  if  the  same 
shall  be  deemed  wittiiii  the  ability  of  the  county,  and  be  ex- 
pedient, they  may  appoint  and  authorize  the  commissioners  to 
proceed  in  the  most  expeditious  manner,  in  opening  and  clear- 
ing the  same,  by  taking  such  hands  from  the  public  roads,  as 
the  court  shall  permit,  and  direct  to  be  allotted  to  such  work ; 
which  hands  shall  be  placed  under  overseers  in  companies, 
every  overseer  and  company  to  have  a  distinct  portion  of  such 
river  or  stream  laid  off  by  the  court. 

2.  Every  overseer  shall  be  appointed  by  the  county  court; 
and  the  clerk  shall  issue  a  notice,  expressing  therein  the  name 
of  the  stream,  the  distance  he  is  to  work  thereon,  and  the 
hands  appointed  under  him,  and  the  sheriff  shall  serve  the 
same  upon  him,  under  the  same  rules  as  notices  are  served 
upon  overseers  of  roads  ;  and  (he  overseer  and  hands,  upon 
receiving  three  days'  previous  notice  from  the  commissioners, 
shall  proceed  to  work  upon  and  clear  out  such  river  or  stream, 
subject  to  the  same  rules  and  double  the  penalties  imposed  by- 
law upon  overseers  and  hands  working  upon  public  roads; 
and  no  overseer  or  hands,  appointed  to  open  and  cl(.'ar  out 
navigable  rivers  and  streams,  shall  be  compelled  to  work  on 
public  roads.     And  the  county  courts  thereafter  shall  annually 


Chap.  100.]  rivers  and  creeks.  531 

appoint  overseers,  and  assign  such  hands,  as  they  may  judge 
proper,  to  work  on  the  rivers  and  creeks,  and  keep  in  repair 
any  slopes  erected  or  to  be  erected;  and  such  overseers,  and  Subject  to 
the  hands  assigned,  for  a  failure  of  duty,  shall  be  subject  to  all  '""^^1^0^ 
the  penalties  imposed  by  law  upon  overseers  of  roads  and  the  roads. 
hands  liable- to  work  thereon. 

8.    The  justices  appointing  the   commissioners   may  direct  •Tusticei  mnr 
them  to  purchase  or  hire  a  flat  with  a  windlass  and  the  appur-  fo'^i';e'proc,',ri^^i.' 
tenances  necessary  to  remove  loose  rocks   and   other  things, —R- S.e.  io3, 
which  may  by  such  means  be  iTiore  easily  removed,  and  allow  ""   ' 
the  same  to  be  paid  for  out  of  the  county  funds. 

4.  The  justices  of  the  courts  of  pleas  and  quarter-sessions  Power  of 
of  the  counties  of  Johnston,  Wayne,  Lenoir,  and  Craven,  seven  joiifi^cliJ^  "^ 
being  on  the  bench,  at  the  first  court  which  shall  be  held  for  Wayne,  Lc, 
their  respective  counties  after  the  first  day  of  July,  may  yearly  ^4°.— R.'^S. 
appoint  and  lay  off,  in  convenient  districts,  all  the  inhabitants  o.  103,  s.  5. 
of  their  counties,  respectively,  resident  above   Spring  Garden 

on  both  sides  of  Neuse  river,  within  such  distances  of  the 
river,  as  the  said  county  courts  shall  appoint;  and  for  each  dis- 
trict appoint  some  person  as  overseer,  who  shall  cause  all  per- 
sons, within  the  district  allotted  to  him,  liable  to  work  on 
public  roads,  to  work  at  least  six  days  in  every  year  on  the 
river,  unless  the  county  courts  shall  otherwise  direct ;  during 
which  time  he  shall  cause  that  they  be  employed  in  removing 
all  logs,  brush,  and  other  obstructions  to  the  navigation ;  and 
for  neglect  he  shall  be  deemed  to  be  guilty  of  a  misdemeanor : 
and  every  person  liable  to  work  as  aforesaid,  or  send  hands, 
who  shall  fail  when  warned,  (as  hands  are  for  working  on 
roads)  to  appear  and  work,  with  such  tools  as  the  overseer 
shall  direct,  shall  pay  for  each  day,  one  dollar,  to  be  recovered 
and  applied  in  the  same  manner  as  fines  for  failing  to  work 
on  public  roads.  Provided,  hoivever,  that  nothing  contained 
in  this  section  shall  abridge,  or  interfere  with,  the  rights  and 
privileges  of  the  Neuse  River  Navigation  Company. 

5.  The  county  courts  may  appoint  commissioners  to  ex- Streams  to  be 
amine  and  lay  oli'  the  rivers  and  creeks  in  their  county ;  and  rjistiicts.  One 
where  the  stream  is  a  boundary  between  two  counties,  may  f™'* '"!'« 
lay  off  the  same  on  their  side  ;  in  doing  so,  they  shall  allow  p'assTgTof  fish. 
three  fourths  for  the  owner  of  the  stream  for  erecting  stops,  — K.  s.  o.  los, 
dams,  and  stands;  and  one  fourth  part,  including  the  deepest 

part,  they  shall  leave  open  for  the  passage  of  fish,  marking  and 
designating  the  same  in  the  best  manner  they  can  ;  and  if 
mills  are  built  across  such  stream,  and  slopes  may  be  neces- 
sary, the  commissioners  shall  lay  of!"  such  slopes,  and  deter- 
mine the  length  of  time  they  shall  be  kept  open  ;  and  such 
commissioners  shall  return  to  their  respective  county  courts,  a 
plan  of  such  slopes,  dams,  and  other  parts  of  streams  viewed 
and  surveyed. 

6.  If  any  person  shall  obstruct  the  free  passage  of  boats,  by  P'"'™"'',"'!. 

J    I  ,      ,  I  1      11    u     bofits  bv  telling 

fellmg  trees,   or   by   any   other   means  whatever,  he   shall  be  trco?,  Sc  mis- 
deemed to  be  guilty  of  a  misdemeanor.  trs'^c'ios'T * 


532 


E0AD3,   FERUIES,   AND    BiUDGES.       [CuAP.    101. 


CHAPTER    101. 

ROADS,   FERRIES,   AND   BRIDGES. 


Section 

1.  Whut  sli;dl  be  public  roads  and  ferries. 

County  courts  to  establish  and  dis- 
continue ferries,  roads,  and  bridges. 

2.  Ferries  and  roads,  how  established, 

altered,  or  discontinued. 
8.  Court  may  decree  how  costs  shall  bo 

paid.     Appeal. 
4.  Hoads,  how  laid  out. 
6.  Wlien  changed,  how  received. 

6.  How  persons  may  turn  roads  on  their 

own  land. 

7.  Overseers  of  highways  annually  ap- 

pointed and  hands  assigned.  Their 
duty.  Notice  of  appointment.  Not 
bound  to  sei-ve  more  than  one  year  in 
three. 

8.  Clerks,  in  ten  days,  to  furnish  sheriffs 

with  orders  appointing  overseers. 
Sheriffs  to  apply  at  clerk's  office  for 
orders,  and  serve  them  in  twenty 
days.  Penalty  on  clerks  and  sheriffs 
for  neglect. 

9.  Overseers   to   summon  hands,    three 

days  before  work  day.  Who  are 
hands.     Penalty  for  failure  to  work. 

10.  Notice,  how  served. 

11.  Overseers  competent  to  prove  notice 

to  hands. 

12.  No  person  excused  from  working,  but 

by  county  court. 

13.  Overseers  may  apportion  road  among 

hands.  But  still  liable  for  any  de- 
fault. 

14.  What  to  be  width  of  roads  and  cause- 

ways. 

15.  Timber  and  earth  taken  from  adjoin- 

ing lands. 

16.  Owners  may  petition    county    court 

for  pay. 

17.  Footways  and  hollow  bridges,  made 

where  court  may  order.  Order  of 
eourt  presumed  after  ten  years'  use. 

18.  Sign-posts  at  fork  of  roads,  to  be  sot 

up  by  overseers.  Penalty  for  ne- 
glect. 

19.  On    persons,    removing    or    defacing 

posts  or  mile-maiks. 


SiCCTION 

20.  Overseers  to  measure  and  mile-mark 
roads. 

21.  Penalty  on  overseers  for  general  ne- 
glect of  duty. 

22.  Bridges  to  be  erected  at  county  ex- 
pense. 

23.  Coutracts  to  build  bridges,  binding  on 
county. 

24.  Osvners  of  mills  and  ditches,  to  keep 
up  bridges,  when. 

25.  Penalty  for  neglect. 
2G.  Toil-bridges  allowed  by  court,  when. 

Builders  to  keep  them  in  repair,  or 
forfeit  toll,  .and  be  indicted. 

27.  Tolls  of  ferry  regulated  by  county 
court.  Penalty  for  neglect  to  keep 
it  up. 

28.  Owner  may  build  toll-bridge  at  hit 
ferry.    Draw  in  bridge,  when  made. 

29.  Bonds  of  keepers  of  ferries  and  own- 
era  of  toll-bridges,  taken  by  county 
eourt.  Persons  injured  may  recover 
damages. 

30.  Penalty  for  keeping  ferry.  Sec,  with- 
out authority.  Proviso  for  mail-car- 
riers. 

31.  Fastening  vessel  to  float-bridge,  pen- 
alty. 

32.  Eailroad  companies,  &c.,  to  keep  draw 
in  bridges. 

33.  Owners  of  steamboats,  &e.,  to  notify 
owners  of  bridges,  to  construct  draws. 
Penalty  for  neglect. 

34.  Counties  to  construct  draws,  when. 

35.  Railroad  companies,  &;c.,  to  keep 
bridges  over  county  road.  Penalty 
for  failure. 

36.  Duty  of  attorney-general  and  solici- 
tors to  prosecute  for  injuries  to 
bridges. 

37.  Cart-ways,  in  what  cases,  and  how  ob- 
tained.   Proceedings  therefor. 

38.  May  be  changed  or  discontinued,  and 
gates  or  bars  erected,  &c.  Penalty 
for  injuring  them. 

J9.  License  to  erect  gates  across  public 

roads,  how  obtaincil. 
40.  Who  exempt  from  working  on  roads. 

^.bhctlds'        1-    ^''^  '°^'^^  'i"*^  f'""'^^  <l'at  have  been  or  .^hall  bo  laid  out 
and  ferries.       Or  appointed  by  virtue  of  any  act  of  assembly,  or  any  order 


Chap.  101.]      koads,  perries,  and  bridges.  583 

of  court,  are  hereby  declared   to  be  public  roads  and  ferries ; 
and  from  time  to  time,  and  at  all  times,  the  courts  of  pleas 
and    quarter-sessions    shall    have    full    power    and    authority  ^o.  courts  to 
within  their  respective  counties  to  appoint  and  settle  ferries  ;  establish  and 
to  order  the  laying  out  of  public  roads  where  necessary;  to  |.|'^!°°"q.|'i"".,^,',j' 
appoint  where   bridges   shall   be   made;   to   discontinue  such  briiiKus.— u.  s. 
roads  and  ferries  as  shall  be  found  useless  ;  and  to  alter  roads  '''   "*' '''  ^" 
so  as  to  make  them  more  useful. 

2.  The  said  courts  shall  not  establish  any  ferry,  or  order  the  Ferries  ami 
laying  out  of  any   public  road,  or  discontinue  or  alter  such  ™-i<is 'low 
road  or  lerry,  unless  upon  petition  in  writmg.     And  unless  it  altered,  or  di'- 
appear  to  the  court,  that  every  person,  over  whose  lands  the  y''""'VQi'''~2 ' 
said  road  may  pass,  or  whose  ferry  shall  be  within  two  miles 

of  the  place  at  which  the  other  ferry  is  prayed  to  be  estab- 
lished, shall  have  had  twenty  days'  notice  of  the  intention  to 
file  such  petition,  the  same  shall  be  filed  in  the  clerk's  office 
until  the  succeeding  court,  and  notice  thereof  be  posted  dur- 
ing the  same  period  at  the  court  house  door;  at  which  court 
the  justices  shall  hear  the  allegations  set  forth  in  the  petition  ; 
and  if  sufficient  reason  be  shown,  the  court  shall  appoint  and 
settle,  or  discontinue  the  said  ferry,  or  order  the  laying  out,  or 
discontinue  or  alter  the  said  road,  as  the  case  may  be. 

3.  In  all  such  applications,  the  court  may  decree  how  and  Court  may  de- 
by   whom  the  costs  shall  be  paid;  and   if  any  person   shall  shall  be  paid. 
appeal  from  the  judgment  of  the  county  court  on  such  peti-  Appeal.— R.  S. 
tion,  he  shall  give  bond  to  the  opposing  party  as  in  other  cases  °'      '  *'  ' 

of  appeal ;  and  the  superior  court  shall  hear  the  whole  matter 
anew. 

4.  All  roads  shall  be  laid  out  by  a  jury  of  freeholders,  to  the  Roads.howiaid 
greatest  advantage  of  the  inhabitants,  and  with  as  little  pre- ioV,T.  5.   ' "" 
judice  as  may  be,  to  lands  and  inclosures;  which  laying  out, 

and  such  damage  as  private  persons  may  sustain,  shall  be 
done  and  ascertained,  by  the  same  jury  on  oath ;  and  all  dam- 
ages by  them  assessed,  shall  be  deemed  a  county  charge. 

5.  Whenever,  upon  petition  of  any  person,  a  road  shall  be  ^^^len  changed, 
changed,  and,  as  a  condition  thereof,  it  shall  be  required  by  1^^  g '^^|7o'^4 
the  court  of  such  petitioner,  that  he  put  the  proposed  road  in  s.  5. 

good  condition,  he  may  at  any  time  thereafter,  tender  the 
same  to  the  overseer,  who  shall  receive  it,  if  it  be  in  such  con- 
dition as  is  required  for  highways  ;  and,  if  not,  shall  reject  it; 
and,  in  either  case,  he  shall  report  and  certify  the  fact  to  court, 
where  the  same  may  be  considered :  and  the  court  shall  hear 
all  persons  interested  in  the  matter  of  receiving  or  rejecting 
the  road;  and  the  decision  of  the  court  shall  be  conclusive  as 
to  the  condition  of  the  road :  but  the  old  road  shall  not  be 
closed,  until  it  be  discontinued  by  order  of  the  court. 

6.  In   addition  to  the  mode  prescribed  in  the  second  sec- ^r""' i^*"^""*, 

,.  (•  ii  ■         u       i         r        J  ■  1,1         ,.11         •  ,11  niHV  turn  roads 

tion  ot  this  chapter,  lor  turning  roads,  the  following  method  on  their  own 
may  be  observed  by  any  one  who  desires  to  change  a  road ''^"J—!^-. ■''■'■• 
from  one   part  of  his  land  to    another  part,   namely  :    Such      '  "  '  ' 
person   shall  lay  out  the  same,  and,  after  putting  it  in  such 
45* 


534  ROADS,   FERRIES,   AND   BRIDGES.       [ChaP.    101. 

good  condition  as  higliways   arc  directed   to  be,  sliall   apply 
to  a  justice  of  tlie  peace,  wlio  thereupon  shall  notify  Ihe  over- 
seer of  the  road,  and  summon  two  freeholders  to  meet  on  the 
premises  at  a  given  day;  and  the  said  freeholders,  being  duly- 
sworn  to  that  eflect,  shall,  with  the  justice,  view  and  examine 
carefully  the  road  which  is  proposed  in  place  of  the  other,  and 
all  matters  and   facts  tending  to  show   whether   the   change 
should  he  allowed  ;  and  they  shall  report  in  writing  subscribed 
by  them,  the  result  of  their  consideration  to  the  next  county 
court,    which    may  confirm  or  reject  their   report.     Provided 
always,  that  such  justice  and  freeholders  shall  be  disinterested 
in  the  land,  and  not  of  kin  or  affinity  to  the  applicant. 
Overseers  of         7.    There  shall  be  overseers  of  all  the  common  highways  or 
«uti^  Wo?nt- P"'^''^  '■o^'J^  "1  ^'i''  State,  who  shall  be  appointed  annually,  or 
ed,  and  bauds    as  often  as   may  be  necessary,  within  every   county,   by' the 
assigned.  county  courts  thereof,  who  shall  divide  the  roads  into  portions 

of  convenient  length  ;  and  each  overseer  shall  have  assigned 
to  him  some  one   of  such    portions,   which  he  shall  keep  in 
good  repair,  and  for  that  purpose  shall  have  allotted  to  him 
certain  hands  to   work   the    same.     Such  overseer  shall  serve, 
Their  duty.       and    be    liable  as   such    for  neglect    of   duty,    until    he    shall 
be  relieved  by  the   court,  which  shall  be  done  only  upon  his 
showing  that  his  road  is  in  good  condition  as  prescribed  by 
^Intaent"'''     ^^^-     -P'''"''*''^^^-  howevcr,  that  he  shall  not  be  responsible  for 
any  insufficiency  of  the  road,  until  ten  days  after  the  notice  of 
his  appointment  is  served  upon  him,  as  is  hereinafter  directed. 
Not  bound  to     And  provided,  also,  that   he   shall   not  be  compelled  to  serve 

*erveraorethan  ,  ,,  .  ,  .^  ,         ,      ,.*  ^  ^   ,. 

one  year  in       longer  than  one  year  m  every  three,  if  he  shall  faithfully  dis- 

'^'^«o-— I*-  S-c.  charge  his  duties  as  overseer  for  such  year. 

Ciek's  in  10  8-    The  clerk   of   the  court  of  pleas  and   quarter-session!?, 

fS.h"iTieriffs  ^'i^*^'"  ^^'^  ^''^^^  ^'^^^''  ^^^  ""'^^  °^  court,  shall  furnish  the  sheriff 
with  orders  ap-  with  two  copics  of  each  Order  appointing  overseers  of  roads, 
Jeer's '"°  °™'^"  "vers,  or  creeks,  that  may  have  been  made  during  the  sitting 
Sh'ffs  to  apply  of  the  court.     And  the  sheriff  shall  apply  at  the  office  of  the 
fi'ce'^fo'r  orden    clerk,  within   ten   days  after  the  rise  of  every  court,  for  such 
and  serve  tiiem  Orders,  and,  on  receiving  them,  shall,  within  twenty  days,  serve 
In  20  days.       each  overseer  of  roads,  rivers,  or  creeks,  with   a  copy   of  the 
order,  or  leave  the  same  at  his  usual  habitation  ;  and  the  other 
copy,  shall  return  to  the  next  county  court,  with  the  date  of  its 
reception  by  him,  and  the  date  of  the  service,  indorsed  thereon, 
or  the  date  when  it  was  left  at  the  residence  of  the  said  over- 
Penalty  on       seer.     And  if  either  the  clerk  or  sherifl"  shall  fail  to  perform 

clerks  and  Fher-  i    ,  •    •        i  i  *       i       .i  •  ,.  i  ...,.'.. 

iffs  fornepiwt.  ^ny  duty  enjoincd  on  him  by  this  section,  he  shall  lorleit  ten 
-E.  S.  c.  104,   dollars   to  the  county,  to  be  recovered  at  any  time,  by  scire 
facias  at  the  instance  of  the  county  solicitor,  who  shall  prose- 
cute the  same  in  the  name  of  the  iState. 
Overseers  to         9.    It  shall  be  the  duty  of  the  overseer  of  public  roads,  three 

iinmmoii  bands,    i  t     c  ^i         i  i*  i  ■  ,  ',.... 

three  days  be- days  belore  the  day  ol  worknig,  to  summon  all  white  male.'*, 

w'ho«rh ''ds'  '^^■*^^''^"  "'^'  '^o''*'  "f  eighteen  and  forty-five,  and  free  males  of 

lOMie  mil  s.  ^^j^j.  ^^^  ^^^j^  slaves,  between  the  ages   of  sixteen  and  fifty 

years,  within  the  district,  to  meet  at  such  times  and  places,  as 


Chap.  101.]      roads,  ferries,  and  bridges.  535 

to  the  overseer  shall  seem  convenient,  for  the  repairing  or  mak- 
ing such  roads  as  may  be  necessary ;  and  the  overseer  shall,  at 
the  same  time,  give  notice  to  each  free  person,  or  the  master  or 
mistress,  or  overseer  of  slaves,  what  kind  of  tools   Ihey  shall 
bring  and  work  with  on  the  road.     And  whosoever  shall,  upon  Penalty  for 
such  summons,  neglect  the  duty,  or  any  part  thereof,  required  ji'f{"'^y/^]™L' 
of  him,  shall  forfeit  and  pay  one  dollar,  per  day,  for  each  per-  s.  lo. 
son  or  hand  so  neglecting  or  failing  therein  ;  which  may  be 
recovered  of  the  father,  or  guardian  having  funds  if  the  person 
failing  be  a  minor;  or,  if  a  slave,  of  the  master. 

10.  When  an  overseer  shall  not  be  able  to  personally  notify  Notice,  how  ^ 
the  persons  aforesaid,  three  days  before  the  day  appointed  for  c.'i^'.  '' 
working  the  road,  he  shall  leave  at  the  house  of  such  free  per- 
son, or  the  master,  mistress,  or  overseer  of  slaves,  and  in  case 

there  be  resident  no  free  white  person  superintending  the 
slaves  residing  on  any  plantation  who  are  bound  to  work  the 
road,  then  at  the  house  of  any  slave,  a  written  summons,  speci- 
fying the  day  on  which  they  are  required  to  attend,  the  place 
of  the  road  to  be  worked,  and  the  kind  of  tools  to  be  brought 
or  used  :  and  the  said  written  summons,  left  as  aforesaid,  shall 
be  deemed  sufficient  notice  to  the  persons  required  to  be  noti- 
fied, to  every  intent  and  purpose :  and  all  pt-nalries  recovered 
by  an  overseer,  for  default  of  working  on  the  road,  thall  be 
applied  by  him  to  the  repair  of  the  road  of  which  he  is,  or  may 
have  been,  overseer. 

11.  Overseers,  whenever  compelled  to  warrant  their  hands.  Overseers com- 
or  the  owners  of  hands  for  neglect  of  their  duty,  shall  be  com-  notice  to  hands. 
petcnt  witnesses  to  prove  notice  to  them  ;  and  if  any  defend-  ~^-  ^-  "=•  i"*' 
ant  shall  be  unable  to  discharge  the  judgment  and  costs  that 

may  be  recovered  against  him,  the  costs  shall  be  paid  by  the 
county. 

12.  No  persons,  between  the  ages  prescribed  for  free  white  No  person  ex- 
men,  and  slaves  and  free  persons  of  color,  respectively,  shall  be  working,  but 
exem|)ted  from  working  upon  the  public  roads,  except  such  as  ^J^  'i^^^g  s 
shall  be  exempted  by  the  General  Assembly,  or  by  the  county  104,  s.  12. 
court   on   account   of   personal   infirmity ;   of  which   the   said 

court,  seven  justices  being  present,  shall  be  the  sole  judge,  and 
except  also  such  as  shall  send  three  slaves,  or  other  three  sutli- 
cient  hands  to  work  on  the  roads:  and  nothing  herein  shall  be 
construed  to  excuse  overseers  of  slaves  from  working  on  roads. 

13.  The  overseer,  if  requested  by  a  majority  of  the  workmen  Overseers  mnj 
on  the  road  assigned  him,  may,  in  his  discretion,  lay  off'  the  arm)°ig'handi. 
road  in  equal  portions  for  the  convenience  of  the  laborers,  who 

shall  linish  his  or  their  part,  in  a  time  agreed  on  between  him 
and   each  free   person,   master,  mistress,  or  overseer;  and  on 
default  of  any  agreeing  party,  the  overseer  shall  cause  such 
part  to  be  finished  by  the  labor  of  other  persons;  and  by  war- 
rant may  recover  the  value  thereof  to  his  own  use.     Pruvided,  R"t  atiiliiabio 
that  the  time  agreed  on  shall  not  exceed  ten  days;  and  that_ii.  s.  c.  104, 
nothing  in  this  section   contained  shall  be  a  defence  to  thes-i3. 
overseer,  when  prosecuted  for  default  concerning  the  condition 
of  the  road. 


536 


ROADS,   FERRIES,   AND    BRIDGES.        [CuAP.  101. 


rd"ho"ro«cl,       ^'^-    ^"  roa^s  shall  be  laid  off  at  least  twenty  feet  wide ; 
anil  cause-        and  where,  by  the  overseers,  it  may  be  deemed  expedient  to 
iu4rs."l4.' ^' "■  "'^'"^  °^  repair  causeways  on  the  same,  they  shall  be  at  least 
fourteen  feet  wide  ;  and  earth,  necessary  to  raise  or  cover  them, 
shall  be  taken  from  either  hand,  so  as  to  form  a  drain  on  each 
side  of  the  causeway.     And  the  overseers  shall  cause  to  be  cut 
and  completely  cleared  all  stumps  and  runners,  for  the  width 
of  sixteen  feef,  in  the  centre  of  the  highways  under  their  care  : 
and  they  shall  make,  of  the   same  width,  necessary  bridges 
through  swamps,  and  over  small  streams  of  water, 
earth  taken        .  ^'^^    Overseers   may  lawfully  cut  poles  and  other  necessary 
hnd\  — l!°''s  "^  tifn'j'-'i',  for  repairing  and  making  bridges  and  causeways.    And 
104, 6. 15.'   ■"■  "whenever  earth  shall  be  needed  on  a  public  road,  and  it  cannot 
be  conveniently  procured  on  either  side  of  the  causeway,  the 
overseer  may  lawfully  take  the  earth  from  any  adjoining"land. 
peS"unty      ^^i    '^}^^  ^wnvT  of  the  land  or  timber  thus  used,  may  tile  his 
conn  for  pay.  petition  in  the  court  of  pleas  and  quarter-sessions  of  the  county 
».  16.  ■  "'  ^"^'  wherein  the  injury  is  done  ;  and,  for  damages  sustained  there- 
by, the  court  shall  make  the  petitioner  adequate  compensation. 
Provided,  that  this  and  the  preceding  section  shall  not  apply 
to  the  lands  adjoining  or  contiguous  to  the  causeway,  or  great 
road,  leading  across  Eagle's  island  to  Wilmington. 
hoUowXidgi      ^-    ^^'■ry  overseer  of  the  road,  when  the  county  courts  may 
made  where      SO  direct,  shall  cause  to  be  made  and  kept  in  repair,  for  the 
court  may  or-   convenience  of  travellers  on  foot,  good  and  sutTicient  footways 
over  all  swamps  and  streams  of  water  that  may  cross  that  part 
of  the  road  allotted  to  him  ;  and,  when  the  court  shall  so  direct, 
shall  also  erect  and  keep  hand-rails  on  each  side  of  all  hollow 
presumed,Xr  ^^^S*^^  situate  on  such  part  of  the  road.     Provided,  that,  at  all 
ten  years'  nse.  places  where  footways  and  hand-rails,  at  hollow  bridges  or 
-K.6.  c.  104,  over  swamps  and  streams  of  water,  shall  have  been  commonly 
used,  for  the  space   of  ten  years   next  preceding  any  period 
within    three    years  before   presentment  made   or  indictment 
found  for  want  of  such  footways  or  hand-rails,  the  same  shall 
be  conclusive  evidence   of  an   order  theretofore  made  by  the 
county  court,  that  they  shall  be  erected  and  kept  up,  and  sub- 
ject to  be  rebutted  only  by  producing  an  order  dispensing  with 
them  made  within  three  years  next  before  such  presentment. 
STroads'         ^^-    Overseers  shall  cause  to  be  set  up,  at  the  fc?rks  of  their 
to  bo  5ot  lip  by  respective  roads,  a  post  or  posts,  with  arms  pointing  the  way  of 
overseers.         each  road,  with  plain  and  durable  directions  to  the  most  public 
Penalt   for       P'^'^''*  *°  which  they  lead,  and  with  the  number  of  miles  from 
ne^iect^— n.  s.  ^^°-^  P'^'^''^  ^^  near  as  can  be  computed  ;  and  every  overseer, 
c.  104,  s.  IS.     who  shall,  for  ten  days  after  notice  of  his  appointment,  neglect 
to  do  so  and  to  keep  the  same  in  repair,  shall  forfeit  and  pay 
for  every  such  neglect  ten  dollars. 
m"v?^g  o^'iJ-'      ^^-    ^"y  person,  who  shall  wantonly  remove,  knock  down, 
faciiiB  posts  or  OF  deface  the   said   posts,  arms,  or  any  mile-mark,  shall,  for 
R-'tTlore  every  such  offence,  forfeit  and  pay  to   the   State   ten  dollars; 
18.  ■   ■      '   ■  and,  moreover,  be  deemed  guilty  of  a  misdemeanor. 
mea'sureUd         ^^-    ^"^'^^  overseer  of  a  road   shall  cause  the  same  to  be 


Chap.  101.]      roads,  ferries,  and  bridges.  537 

exactly  measured,  where  it  has  not  already  been  done,  and  at  ""'^""^tj^ 
the  end  of  each  mile,  shall  mark  in  a  plain,  legible,  and  durable  loi,  s.  is. 
manner,  the  number  of  the  miles, — -beginning,  continuing,  and 
marking  the  numbers,  in  such  manner  and  form  as  the  court 
shall  direct;  and  every  overseer  shall  keep  up  and  repair  such 
marks  and  numbers  of  his  road.  If  an  overseer  shall  neglect 
any  of  the  duties  prescribed  in  this  section,  for  the  space  of 
thirty  days  after  his  appointment  to  office,  he  shall  forfeit  and 
pay  four  dollars,  and  the  like  sum  for  every  thirty  days  there- 
after the  said  marking  may  be  neglected. 

21.    Every  overseer  who  shall  neglect  to  do  any  other  duty,  Pen;iii.von 
by  this  chapter  directed  to  be  done,  or  who  shall  not  keep  the  ^enenu'^^e'^ieot 
roads  and  bridges  clear  and  in  repair,  or  shall  let  them  remain  of  duty.— k.  S. 
uncleared  or  out  of  repair,  during  the  space  of  ten  days,  unless  '''  ^°*'  '■  ^'^" 
hindered  by  extreme  bad  weather,  shall  forfeit  for  every  such 
offence  four  dollars,  and  be  liable  for  such  damages  as  may  be 
sustained.     Provided  always,  that  nothing  in  this  section  con- 
tained shall  excuse  any  neglect  of  duty  by  an  overseer,  as  the 
same  is  prescribed  in  any  other  part  of  this  chapter. 

2:2.    When   a  bridge   shall  be  necessary,  and  the   overseer  Courts  to  have 
with  his  assistants  cannot  conveniently  make   it,  the  county '^i'"^?'^','"''"'''^'* 

J  '  J   at  couutv  ex- 

court  shall  contract  for  the  building,  keeping,  and  repairmg  pense.— K.  S. 

thereof,  and  levy  the  charge  on  then*  county  ;  and  when  bridges  "•  ^'^'^'  ^-  ^^' 

shall  be  necessary  over  any  stream  which  divides  one  county 

from  another,  the  court  of  each  shall  join  in  agreement  for 

building,  keeping,   and   repairing  the   same ;  and   the   charge 

thereof  shall  be  defrayed  by  both  counties,  in  proportion  to  the 

number  of  taxable  polls  in  each. 

23.  Every  contract  and  order,  by  the  court  entered  into  or  Contracts  to 
made,  for  or  concerning  the   building,  keeping,   or  repairing  !'^'','l ''"''s«'. 

,     .  J  .  ,  ~  1      11  binding  on 

bridges,  m  such  manner  as  to  them  shall  seem  most  proper,  county.— R.  s. 
shall  be  valid  against  the  justices  and  their  successors.  c.  104,  s.  23. 

24.  It  shall  be  the  duty  of  every  owner  of  a  water-mill,  which  Owners  of 

is  situate  on  any  public  road,  and  also  of  every  person,  who,  es''on™nd''''''' 
for  the  purpose  of  draining  his  lands,  or  for  any  other  purpose,  across  roads,  to 
shall  construct  any  ditch,   drain,    or    canal   across    a    public  es'^!!!R''s."'!^" 
road,  respectively,  to  keep  at  his  own  expense  in  good  andio4,  s.  24  — 
sufficient  repair,  all   bridges   that  are  or    may  be   erected   or  ^^■^^' '^•^^'^' ^' 
attached   to   his   mill-dam,  immediately  over  which  a  public 
road  may  run  ;  and  also  to  erect  and  keep  iu  repair  all  necessary 
bridges  over  such  ditch,  drain,  or  canal  on  the  highway,  of  the 
width  required  for  other  bridges  across  the  highway,  so  long  as 
they  may  be  needed  by  reason  of  the  continuance  of  said  mill, 
or  mill-dam,  ditch,  drain,  or    canal.     Provided,  that  nothing 
herein  contained  shall  be  construed  to  extend  to  any  mill  which 
was  erected  before  the  laying  off  such   road,  unless  the  road 
was  laid  off  by  the  request  of  the  owner  of  the  mill.     And  pro- 
vided firrlher,  that  the  duty  hereby  imposed  on  the  owner  of 
the  mill,  and  on  the  person  cutting  the  drain   or  canal,  shall 
continue  on  all  subsequent  owners  and  occupiers  of  the  mill, 


538  ROADS,   FERRIES,   AND    BRIDGES.        [ClIAP.  101. 

and  on  all  subsequent  owners  and  occupiers  of  the  property, 
for  the  benefit  of  which  the  said  ditch,  drain,  or  canal  was 
cut. 
Penalty  for  25.    Every  person,  who   shall  neglect  to  do  his  duty  as  di- 

c.°iu4,'s725.  ■  rected  by  the  preceding  section,  or  siiall  let  remain  out  of 
repair  any  such  bridge,  for  the  space  of  ten  days,  unless  pre- 
vented by  unavoidable  circumstances,  shall  forfeit,  for  every 
such  offence,  twenty  dollars,  and  be  liable  for  such  damage  as 
may  be  sustained. 
Toll-bridges  26.    Whenever,  from  the  rapidness  or  width  of  any  stream, 

courrwhen.     ^*  '^^7  ^^  ^*^°  burdensome  to  build  and  keep  up  a  bridge  across 
tlie  same,  at  the  expense  of  those  who  are  taxable  for  that  pur- 
pose, the  justices  of  the  county,  or  counties  chargeable  there- 
with, a  majority  being  present,  may  jointly  and  severally  (as 
the  case  may  be)  contract  for  the  building  thereof,  by  allowing 
the  builder  to  take  tolls,  at  such  rate  and  for  such  time,  on  all 
persons,  horses,  carriages,  and  other  things  passing  over  the 
bridge,  as  may  be  agreed  on  between  the  justices  and  the 
Builders  to       builder;  which  tolls  shall  be  common  to  all  persons.    And  such 
re^pair,  orfo"    bridges  shall  be  built  in  the  manner  the  court  or  courts  may 
f«''.t""' i^<' '"'  direct,  and  shall  be  kept  in  good  repair  by  the  builder,  his  heirs 
S.  c.  104, 8.  26.  and  assigns,  during  the  time  the  tolls  are  to  be  enjoyed:  and 
in  default  of  complying  with  the  contract,  the  builder,  or  others 
who  may  succeed   to  his   rights  and  enjoy  the  tolls,  shall  be 
deemed  guilty  of  a  misdemeanor. 
^''''latedT^        27.    The  justices  of  each  county  shall,  once  a  year,  or  oftener 
county  court,    if  necessary,  at  the  court  to  be  held  next  after  the  first  day  of 
January,  rate  the  prices  of  such  ferries  as  shall  be  kept  within 
their  respective  counties :  and  any  ferry  keeper  who  shall  ask, 
demand,  or  receive  a  greater  price  for  ferriage  than  shall  be 
rated  by  the  justices,  shall  forfeit  and  pay  five  dollars  for  every 
ftit'in"^to'°ke'e"  ofif^^^'^'  ^o  *'i<^  party  aggrieved.     And  every  person  who  owns 
it  np.— R.  s.  c.  a  public  ferry,  and  refuses  to  keep  it  up  at  the  rates  allowed  by 
104, 9.  27.         the  court,  shall  for  every  such  offence,  forfeit  five  dollars. 
b^^MTt  u"^  28.    In  all  cases,  where  the  proprietor  of  a  ferry  shall  prefer 

bridge  at  Lis     building  a  good  and  substantial  bridge  over  any  watercourse 
ferry.  instead  of  keeping  a  ferry,  he  may  do  so ;  and  may  claim  and 

hold  such  bridge  under  the  same  rights,  and  in  the  same  man- 
ner, by  which  the  ferry  is  claimed  and  held,  and  under  the 
same  rules,  regulations,  restrictions,  and  penalties  as  other  toll- 
bridges,  allowed  by  the  twenty-sixth  section  of  this  chapter. 
Prorided,  nevertheless,  that  no  more  toll  shall  be  demanded  for 
passing  any  such  bridge,  than  is  granted   by  law  for  the  fer- 
riage, unless  by  agreement  with  the  county  court.     And  pro- 
^'^i^„''^]:jl^^'vided  further, iha.\',m  all  such  bridges,  the  proprietor  shall  erect 
R.  s.  c.  104,  s.  a  draw,   where    the    free  navigation  of  the    stream   may  re- 
■'°'  quire  it. 

Bondfi  of  own-       29.  The  court  of  each  county  shall  compel  every  person  that 

crs  of  femes,  i    ii  i    •  i  i  i  i-       ,•         ^^   '^ -.i  •        xi 

and  toll-  may   own    a   toll-bridge,   or   keep   a   public  ferry,  within    the 

bridges  to        county,  to  give  bond  with  good  security,  in  the  sum  of  one 


Chap.  101.]       roads,  ferries,  and  bridges.  539 

thousand  dollars,  payable  to  the  State  of  North  Carolina,  con-  be  taken  iiy 
ditioned  that  he  will  constantly  keep  such  bridge  in  good  j-e- "^'"""y '-'""'■'• 
pair,  or,  as  the  case  may  be,  provide  and  keep  good  and  suf- 
ficient boats,  or  other  proper  craft,  always  to  be  well  attended, 
for  the  passing  of  travellers  or  other  persons,  their  horses,  car- 
riages, and  effects  ;  and  will  indemnify  and  save  harmless  every 
person  who  may  be  endamaged,  by  reason  of  any  default  in 
his  undertaking.     And  if   any  person  shall    receive  damage,  l'<^'-=on'*'".i"red 
because  such  ferryman,  or  keeper  of  a  toll-bridge  shall  not  have  "!uL'",)!s°— [;. 
complied  with  the  condition  of  his  bond,  he  may  bring  suit  •"'•''•  i"*iS- 2^. 
thereon  in  the  name  of  the   State,  and  recover  his  damages. 
And  if  any  person  shall  be  detained  at  any  public  ferry,  by 
reason  of  the  ferryman  not  having  sufficient   boats   or  other 
proper  crafts  and  hands,  or  by  his  neglecting  to  do  his  duty  in 
any  other  respect,  he  may  recover  before  a  justice  of  the  peace, 
against  such  ferryman,  the  sum  of  ten  dollars,  as  a  penalty  for 
every  such  default  or  neglect. 

30.  If  any   unauthorized  person   shall   pretend   to   keep   a  ren-iity  for 
ferry,  or  to  transport  for  pay  any  person  or  his  effects,  within  &c!rwftho'u7' 
ten  miles  of  any  ferry  on  the  same  river  or  water,  which  there-  ^^utiiority. 
tofore  may  have  been  appointed,  he  shall  forfeit  and  pay  two 

dollars  for  every  such  ofl'ence,  to  the  nearest  ferryman.     Pyo- Proviso  for 
vided,  that  any  person  who  may  contract  for  carrying  the  mail,  ™i!l"s?'c.'iM 
may  keep  a  boat  for  the  sole  purpose  of  transporting  the  same,  s.  so. 
and  such   passengers  as  may  travel  in  the   coach   therewith, 
across  any  ferry  ;  but  such  contractor  shall  not  transport  across 
such  ferry  any  other  passengers  than  such   as  travel  by  the 
coach. 

31.  No  person   shall  fasten  any  decked  vessel  to  a  float- Fiistening  vcs- 
bridge,  on  pain  of  forfeiting  fifty  dollars;  which,  in  the  case  of  ^ridoe^™'' 

a  bridge  that  crosses  a  county  line,  may  be  recovered  in  either  i'i^|>'°it.\'-—R- 
county.  ^- <=•"*• 

32.  Railroad,  plank-road,  and  turnpike  companies,  erecting  R^iiiro.iri  eo's, 
bridges  across  watercourses,  shall  attach   and  keep   up  good  ^,':;;v°il"'''^ 
and   sufiicient  draws,  by  which  vessels  may  be  allowed  con-  bridges.— i84G, 
veniently  to  pass.  "■  ^^'  '•  ^'  ^• 

33.  Owners  of  steamboats  or  other  craft,  who  may  intend  Owners  of 
to  navigate  any  river  or  creek  over  which  any  person  may  have  ^c""(u°jjlfif 
a  bridge,  may  give  three  months'  notice  thereof  in  one  of  the  owli'ors  of" 
public  journals  of  the    State,  published   nearest  the   river  or  ^a'u^cdVaws?"" 
creek  intended  to  be   navigated,   and  to   the   owner  of  said 

bridge,  to  construct  a  draw  of  sufficient  width  to  allow  the 
passage  of  the  boat  which  is  to  be  used  ;  and  if  the  owner  of  rcn;i!tr  for 
the  said  bridge  shall  not,  within  three  months  from  the  date  "'"f^'"^•7lf'"'' 
of  the  notice,  construct  the  required  draw,  he  shall  forfeit  and 
pay  to  the  person  so  notifying,  if  he  be  thereby  prevented  from 
navigating  the  watercourse,  fifty  dollars ;  and  shall  be  further 
subject  to  the  like  penalty,  under  like  circumstances,  for  every 
three  months  default  thereafter. 


34.    The  county  or  counties  which  may  erect  bridges  shall. 


erect  draws, 


540  EOADS,   FERRIES,   AlvD   BRIDGES.       [ChAP.    101. 

Tvhere  ncces-    by  their  court?,  provide  and  keep  up  draws  in  all  such  bridges, 
^"■^'  where  the  same  may  be  necessary  to  allow  the  convenient  pas- 

sage of  vessels. 

EftiWd  CD's,        35.  Railroad,  plank-road,  and  turnpike  companies,  each,  shall 
&c.,tokeop       ,  ,     .'^  '  r  f  '  ' 

bridges  over  Keep  up,  at  their  own  expense,  ail  bridges  on  or  over  county, 
county  roads,  or  incorporated  roads,  which  they  have  severally  made  it  neces- 
sary to  be  built,  in  establishing  their  respective  roads  ;  and  on 
failure  to  do  so,  shall  be  deemed  guilty  of  a  misdemeanor,  and, 
Penalty  for  on  conviction  thereof  be  fined,  and  execution  may  issue  for 
c*'5"s?r2^3'^4.  ^"^  '^"'^  costs  ;  and  moreover  shall  forfeit  and  pay  twenty-five 

dollars. 
Dutyofatt'y-  36.  The  attorney-general,  and  the  solicitors  of  the  superior 
for"  to"prose'-°'"  ^"^  couiity  courts  are  authorized  and  directed  to  institute  suits, 
cute  for  inju-  in  the  name  of  the  State,  in  the  counties  wherein  the  injuries 
— r«46,  c. u^s.  '"^y  ^^  done,  for  the  recovery  of  damages,  against  all  persons, 
ii2.  who  shall  wilfully  or  negligently  injure  any  public  bridge  be- 

longing to  or  situate  in  any  county  or  counties,  by  forcibly 
running  any  decked  vessel,  boat,  or  raft  against  the  same  ;  by 
cutting  trees  or  timber  in  the  rivers  or  creeks  above  such 
bridges,  or  by  any  other  manner  or  means  whatsoever.  In  ease 
the  injury  is  done  to  two  counties,  the  action  may  be  brought 
in  either  for  the  entire  damage  ;  and  the  damages  which  may 
be  recovered,  shall  be  for  the  use  of  the  county  or  counties 
injured:  and  if  the  plaintiff  fail,  the  costs  shall  be  paid  by  the 
county  or  counties,  for  whose  use  the  suit  is  brought,  and  in 
the  same  proportion  in  which  the  recovery  would  be  divided. 
Cart-way,  in  37.  If  any  person  be  settled  upon  or  cultivating  any  land, 
how  o'btalneT.  ^"^  which  there  is  leading  no  public  road,  and  it  shall  appear 
necessary,  reasonable,  and  just,  that  such  person  should  have 
a  private  way  to  a  public  road  over' the  lands  of  other  persons, 
he  may  file  his  petition  in  the  county  court,  praying  for  a  cart- 
way to  be  kept  open  across  such  other  person's  lands,  leading  to 
Proceeding?  some  public  road,  ferry,  bridge,  or  public  landing;  and  upon 
c^Tof  "sraa.' ^'  ^^^  making  it  appear  to  the  court,  that  the  adverse  party  has 
had  twenty  days'  notice  of  his  intention,  the  court,  seven  jus- 
tices being  present,  shall  hear  the  allegations  of  the  petitioner; 
and,  if  sufficient  reason  be  shown,  shall  order  the  sheriff  to 
summon  a  jury  of  twelve  freeholders,  to  view  the  premises, 
and  lay  off  a  cart-way  not  less  than  fourteen  feet  v.'ide,  and 
assess  the  damages  the  owner  of  such  Innd  mny  sustain 
thereby;  which,  with  the  expense  of  making  the  way  shall  be 
paid  by  the  petitioner :  and  the  way  shall  be  kept  open  for  the 
free  passage  of  all  ]icrsons,  on  foot  or  horseback,  carts,  and 
wagons.  Proridcd,  that,  if  the  notice  aforesaid  shall  not  have 
been  given,  the  court  shall  cause  such  petition  lo  be  lilcd  in 
the  clerk's  office  until  the  next  court,  when  they  shall  proceed 
to  hear  and  determine  the  same. 
Maybe  38.    Cart-ways,  laid  otf  according  to  the  preceding  scctioH, 

conTuuicd,"^ ami  "^^7  ^^  changed  or  discontinued  upon  application  by  any  per- 
giites  or  imrs     SOU  Concerned,  Under  the   same   rules   of  pioceedinir  as  thev 

•rected,  &c.  I  &  J 


Chap.  101.]     roads,  ferries,  and  bridges.  541 

may  be  first  laid  off,  and  upon  such  terms  as  to  the  court  shall 
seem  equitable   and  just.     And  any  person,  through   whose 
land  a  cart-way  may  pass,  may  erect  gates  or  bars  across  the 
same :  and  if  any  person   shall  leave   open,  break   down,   or 
otherwise  injure  such  gates  or  bars,  he  shall   forfeit  and  pay,  Penalty  for 
for  every  such  offence  ten  dollars,  to  the  person  erecting  the  '^^"r.'s^ V.'ui 
same  or  his  assigns  of  the  land  ;  and,  if  the  offence  shall  be  '•  34, 35,  37. 
maliciously    done,    he    shall   be    deemed  guilty  of   a  misde- 
meanor. 

39.  Any  person  desirous  to  erect  a  gate  across  a  public  License  to  erect 
road,  may  file  his  petition  in  the  court  of  pleas  and  quarter-  hf^hmfj^'how 
sessions  of  the  county  where  the  road  lies  ;  whereupon,  publi-  obtained.— r.^ 
cation  shall  be  made  at  the  courthouse  until  the  next  sue-  '"'  '  •  • 
ceeding  term,  of  such   application,   specifying  the  road,  the 

place  for  the  gate,  and  name  of  the  petitioner:  and  all  persons 
interested  in  the  convenient  travelling  or  transportation  on 
said  road,  shall  have  leave  to  appear  and  defend,  demur,  or 
plead  to  said  petition ;  and  if,  at  that  court,  it  shall  appear 
that  such  publication  has  been  made,  the  court,  a  majority  of 
the  justices  being  present,  may,  at  their  discretion,  authorize  , 
the  petitioner,  at  his  cost,  to  erect  a  gate  as  prayed  for. 

40.  The  following  persons  shall  be  exempted  from  work-  Who  exempt 
ing  on  roads,  namely  :  justices  of  the  peace,  constables,  keep-  o^nroad^-isfs 
ers    of    public    grist-mills,   wardens    of    the    poor,    patrollers,  c.  46.— R.  S.  c'. 
teachers  and  pupils  of  schools,  and  lock  keepers  on  the  Dis- 1%\  i^is^R.' 
mal  Swamp  Canal.  s.  c.'eo;  mij 

c.  36,  3.  31; 
1838,  0.  50. 


Sect.  1.  Mmj  he  established:  ly  vser,  1  Ire.  432,  6  lb.  369,  Bus.  245;  dedication,  4  Ire. 
318,  11  lb.  647;  notby  mere  appointment  of  overseer,  3  Ire.  168,  11  lb.  647. 

Sect.  2.  Practice,  7  Ire.  365,  1  Car.  L.  R.  249;  ichat  petition  must  show,  3  Ire.  108; 
notice,  3  Hawks,  699;  non-assessment  of  damages,  1  Ire.  432;  what  may  be  condemned,  2 
D.  &  B.  451;  irregular  order,  2  D.  &  B.  547,  6  Ire.  162;  appeal,  2  Ire.  168;  costs  on,  3 
Hawlis,  312,  11  Ire.  9. 

Sect.  5.  Form  of  petition,  2  D.  &  B.  647;  should  be  granted,  when.  Bus.  387. 

Sect.  7.  Who  liable  ashamls,  8  Ire.  436,  1  Jones,  133 ;  how  allotted,  2  Jones,  48 ;  penaltv 
for  not  xcorUng,  11  Ire.  278. 

Sect.  10.  iiotice  necessary,  2  Car.  L.  R.  6a3.    Liability  of  overseer,  1  Jones,  231. 

Sect.  14.   Orerseer  has  no  right  to  widen  road,  11  Ire.  94. 

Sect.  17.    What  bridges,  if-c,  overseer  to  make,  6  Ire.  Eq.  613. 

Sect.  21.   Case  of  inability  to  repair,  11  Ire.  371. 

Sect.  24.  State  v.  Yarrell,  2  Jones,  2  Hawks,  349. 

Sect.  26.  3  Ire.  Eij.  613. 

Sect.  28.  i  Ire.  Eq.  613. 

Sect.  38.  9  Ire.  15. 

46 


542 


SALARIES   AND   FEES. 


[Chap.  102. 


CHAPTEE    102. 


SALARIES   AND  FEES. 


Sectiou 

1.  Salaries  of  governor,  judges  of  su- 

preme court,  secretary  of  State, 
treasurer,  comptroller,  private  secre- 
tary, superintendent  of  common 
schools,  clerks  of  treasury,  when 
and  how  paid. 

2.  Of  adjutant-general. 

3.  Of  judges  of  superior  courts.    Addi- 

tional pay  when  circuit  has  more 
than  twelve  courts. 

i.  Certificates  of  attendance  to  be  pro- 
duced, or  deductions  made.  Clerlts 
of  certain  courts  forbidden  to  give 
certificates  until  i  o'clock,  r.  M.  of 
Thursday  in  term. 

6.  Salary  of  attorney-general,  and  solic- 
itors. 

6.  Of  reporter  of  decisions  of  supreme 

court.  He  may  print  copies  of  his 
reports  on  his  own  account.  May 
contract  with  clerk  to  furnish  copies 
for  distribution. 

7.  Pay  of  counsellors  of  State. 

8.  Of  clerk,  and  door-keeper  of  council. 

9.  Of  members  of  General  Assembly. 

10.  Of  clerks  and  officers  of  (ieneral  As- 

sembly. 

11.  Pay  of  members   and  officers,  how 

ascertained,  certified,  and  paid. 

12.  Fees  of  governor's  private  secretary. 

13.  Of  secretary  of  State. 

14.  Of  attorney-general  and  solicitors  for 

State.    Fees  in  supreme  court. 

15.  Of  county  solicitors. 

16.  Of  attorneys  at  law.    Attorneys   for 

State  in  civil  cases. 

17.  Clerks  of  county  courts,   on  mesne 

process.  On  final  process.  For 
proving,  recording,  filing,  searching, 
certifying,  and  entering  on  minutes. 


Section 

For  copying.    For  bonds,  licenses, 
notices,  &o. 
IS.  Of  clerks  of  superior  courts. 

19.  No  fee  on  capias,  in  certain  cases. 

20.  In   certain    State  cases,  clerks    and 

sherifls  to  have  only  half  fees. 

21.  Sheriffs'  fees  on  mesne  process,  sub- 

poenas, orders,  &c.  On  final  pro- 
cess. For  keeping  and  conveying 
criminals,  maintaining  slaves,  &c. 
Sheriffs'  commissions.  Service  of 
equity  process. 

22.  No  commission  on  justice's  e.\eoution. 

23.  Clerks  to  keep  a  copy  of  their  fees 

posted  up  in  their  offices. 

24.  May  issue  execution  for  fees  in  cer- 

tain cases.  Bill  of  costs  to  bo  an- 
nexed. 

25.  Salary  and  fees  of  clerk  of  supreme 

court. 

26.  Of  clerk  and  master  in  equity. 

27.  Compensation  of  county  trustees. 

28.  Fees  of  coroners. 

29.  Of  constables. 

30.  Of  registers. 

31.  County  court  m.iy  fix  register's  fees 

within  certain  limits. 

32.  Of  entry-taker. 

33.  Of  county  surveyors  and  chain  car- 

riers. 

34.  Of  rangers. 

35.  Of  commissioners  of  afljdavits. 

36.  Of  processioners. 

37.  Of  standard-keepers. 

38.  Of  jailers. 

39.  Of  inspectors. 

40.  Of  tobacco-pickers. 

41.  Of  notaries. 

42.  Dates  and  figures,  how  reckoned  in 

copy  sheet. 


Salariesof  gov- 
ernor, judges 
of  supreme 
court,  trcas'r, 
secretary  of 
State,  comp- 
troller, private 
secretary,  su- 
perintendent of 
com'n  schools, 
clerks  of  treas- 


1.  The  officers  hereinafter  named  shall  annually  receive  the 
following  salaries,  that  is :  the  governor  of  the  State,  three 
thousand  dollars,  and  no  other  compensation  whatsoever; 
each  of  the  judges  of  the  supreme  court,  two  thousand  five 
hundred  dollars ;  the  secretary  of  State,  besides  his  fees,  eight 
hundred  dollars;  the  public  treasurer,  two  thousand  dollars; 
the  comptroller,  one  thousand  dollars,  and  a  fee  of  ten  cents 
from  the  claimant,  for  each  certificate  made  and  delivered  to 


Chap.  102.]  salaries  and  fees.  543 

the  secretary  of  State  of  money  paid  on  entered  land;  the  When  and  how 
superintendent  of  common  schools  for  the  State,  fifteen  hun-  P"''^' 
dred  dollars,  to  be  paid  out  of  the  literary  fund  ;  the  private 
secretary  to  the  governor,  three  hundred  dollars,  besides  his 
fees;  and  the  clerk  or  clerks  of  the  treasury  department,  seven 
hundred  and  fifty  dollars:  all  which  salaries  shall  be  paid 
quarterly,  that  is,  on  the  first  days  of  April,  July,  October, 
and  January  in  every  year,  by  the  public  treasurer,  on  warrants 
drawn  by  the  governor. 

2.  The  adjutant-general  of  tjie    State  shall  receive  an  an-  Ofaajutint- 
nual  salary  of  two  hundred  dollars,  to  be  paid  semiannually  general. 
by  the  public  treasurer,  upon  warrant  from  the  governor. 

8.   The  judges  of  the  superior  courts  of  law  and  courts  of  Of  judges  of 
equity,    shall  each    have   an  annual   salary,  payable   semian- '"''^'""'"''"''" 
nually,  of  one  thousand  nine  hundred  and  fifty  dollars,  in  full 
compensation  for  all  judicial  duties  which  are  now,  or  may 
hereafter  be  assigned  to  them  by  the  General  Assembly;  and 
for  the  holding  of  a  special  term  of  the  superior  court,  the 
judge  presiding  shall  receive  ninety  dollars,  to  be  paid  by  the 
county  in  which  the  special  term  is  held,  on  the  production  of 
the  certificate  of  the  clerk  of  the  court  aforesaid.     Provided,  Additional  pay 
IioiveiW,  that   in    all   cases  where    a  circuit  of  the   superior  te^nore7han 
courts  shall   exceed  twelve  weeks,  the   judges    holding    said  twelve  conru. 
courts  at  any  regular  term,  shall  be  entitled  to  a  compensa- 
tion of  ninety  dollars  for  the  court  of  each  county,  exceeding 
twelve,  held  by  them,  to  be  paid  by  the  public  treasurer  on  the 
first  days  of  January  and  July,  in  addition  to  the  salary  afore- 
said ;  and  each  week  in  which  a  court  shall  be  held  shall  be 
considered  a  term. 

4.  Every  judge  shall  produce  a  certificate  from  the  clerk  of  •Certificates  of 
each  county  of  his  having  held  the  court  of  the  county  accord-  S" produced? 
ing  to  law;  and  for  every  such  certificate  omitted  to  be  pro- "■■  deduction's 
duced,  there  shall  be  a  deduction  from  his  salary  of  one  hun-  ""'''*'■ 
dred  dollars.     Provided,  however,  that  no  certificate  of  attend-  cierksofcer- 
ance  shall  be  given   by  the   clerks  of  the   superior  courts  of  {^j." '"'"'''s  for- 
Northampton,  Hyde,    Davie,  Currituck,   Person,  and   Cleave- certificat^es^un- 
land,  until   four  o'clock  on   Thursday  evening  of  each  week  p' ;f,  °^^:?^?,''' 
when  the  court  shall  be  held;  and  the  certificate  shall  be  void  day ■iifterm"'^^' 
if  it  do  not  certify  that  the  presiding  judge  was  present  and 

held  the  court  until  that  time,  and  until  the  business  was  dis- 
posed of;  unless  some  unavoidable  circumstance  shall  prevent 
the  courts  of  said  counties  from  being  held  at  the  prescribed 
time,  and  then  the  same  shall  also  be  certified  in  the  certifi- 
cate. 

5.  The  attorney-general,  or  the  solicitor  who  may  attend  in  Salary  of  attor- 
his  place,  shall  receive  one   hundred  dollars  for  each  term  of  ™dtoLidtors. 
the  supreme  court  which  he  shall  attend ;  and  these  officers  ' 

shall  receive,  besides  their  prescribed  fees,  twenty  dollars  for 
each  term  of  the  superior  court  they  shall  attend,  to  be  paid 
by  the  public  treasurer,  on  a  certificate  of  such  attendance 
from  the  clerk  of  the  court;  and  if  they  attend  any  court  more 


544  SALARIES   AND    FEES.  [ChAP.    102. 

than  one  week,  they  .slmll  receive  twenty  dollars  more  for  the 
second  week,  to  be  paid  in  the  same  manner. 
Of  reporter  of        Q_  The  reporter  of  decisions  of  tiie  supreme  court  shall  re- 

decisions  of  •  *  .•  r        ,\  •  i  .       ■» 

supreme  court,  cfive,  as  a  compensation  tor  the  services  and  reports  required 
of  him  by  law,  a  salary  of  six  hundred  dollars ;  which  shall  be 
paid  upon  satisfactory  evidence  to  the  treasurer  that  he  has 
had  printed  and  distributed,  within  the  prescribed  time,  the 
number  of  copies  of  the  reports  reserved  for  the  use  of  the 

He  may  print    State.     Besides  the  copies  aforesaid,  the  reporter,  then  or  at 

copies  of  his  ii_       i-  1  •  J  1       .    1  . 

reports  on  his    ^"Y  Other  time,  may,  on  his  own  account,  and  at  his  own  ex- 
own  account,    pense,  print,  publish,  and  vend  as  many  additional  copies  as 
he   may  choose ;  and   shall   also   have  the   exclusive  right  to 
obtain,  under  the  act  of  congress,  the  copy-right  of  the  reports : 
May  contract    and   if  the  reporter  should  prefer  to  do   the  work  himself  of 
foniishrapies    printing  and  distributing  for  the  State  the  copies  directed  to 
for  distribu-      be  distributed,  he  may  do  so  upon  such  terms  as  the  clerk  of 
the  supreme  court  at  Raleigh  shall  deem  reasonable,  and  may 
contract  with  the  clerk  on  behalf  of  the  State  for  that  purpose. 
Payofcoun-         7.  A  counsellor  of  State  shall  receive  three  dollars  per  day 
seliors  of  State.  j-Qj.  g^g^y  j^y  he  may  attend   on  public   business;  and  three 
dollars  for  every  thirty  miles'  travelling  to  and  from  the  city  of 
Raleigh  on  public  business.  • 

Of  clerk  and         8.  The  clerk  of  the  council  shall  receive  two  dollars,  and  the 
councii.'''^'^  °'^  door-keeper  eighty  cents,  for  each  day  such  persons  may  be 

employed  in  attending  on  the  council  of  State. 
Of  members  of  9.  The  speakers  of  the  senate  and  of  the  house  of  com- 
sembly!'^'  mons  of  the  General  Assembly,  shall  each  be  entitled  to  re- 
ceive four  dollars,  for  every  day  they  shall  attend  the  senate  or 
house  of  commons  ;  and  each  senator  and  member  of  the 
house  of  commons,  three  dollars  for  every  day  he  shall  attend 
the  senate  or  house  of  commons;  and  the  speaker  and  every 
member  of  the  senate  and  house  of  commons  shall  also  be 
allowed  his  necessary  ferriage,  and  three  dollars  for  every 
thirty  miles  of  the  estimated  distance  of  going  and  returning, 
by  the  most  usual  road,  from  his  place  of  residence  to  the  seat 
of  government.  And  in  case  the  speaker,  or  any  member  of 
the  senate  or  house  of  commons  shall  be  detained  by  sickness 
on  his  journey  to  or  from  any  session ;  or,  after  his  arrival, 
shall  be  unable  to  attend  the  senate  or  house  of  commons,  he 
shall  be  entitled,  as  if  he  had  attended  regularly  in  his  place. 
^ffiMrs'^ofo'en-  ^^'  '^^^^^  ^'^^^'  ^^  allowed,  as  a  compensation  for  their 
erni  Assembly,  daily  attendance  and  services,  to  the  clerks  and  officers  of  the 
senate  and  house  of  commons  of  the  General  Assembly,  at 
every  session,  the  following  sums:  to  each  principal  and  as- 
sistant clerk,  six  dollars  ;  to  each  engi-ossing  clerk,  four  dol- 
lars; to  each  door-keeper,  three  dollars;  and  there  shall  be 
allowed  to  each  of  the  principal  clerks  of  both  houses,  sixty 
dollars,  as  a  full  compensation  for  transcribing  the  journals  of 
each  house  for  the  i)ublic  printer,  and  for  taking  care  of  the 
books,  papers,  and  eflccts  of  each  house,  and  all  other  inciden- 
tal services  attached  to  their  offices ;  and  the  principal  clerks. 


Chap.  102.]  salaries  and  fees.  546 

assistant  clerks,  and  door-keepers  of  both  houses,  and  also  the 
engrossing  clerks,  shall  each  be  allowed  three  dollars  for  every 
thirty  miles  of  the  estimated  distance,  in  going  and  return- 
ing lay  the  most  usual  road,  from  the  seat  of  government  to 
his  place  of  residence,  and  also  their  ferriages. 

11.  The  compensation   of  the  members  and  officers  of  the  ^ay  of  mem- 
senate  shall  be  ascertained  by  the  principal  clerk,  and  certified  cers,  how"as- 
by  the  speaker  thereof;  and  that  of  the  members  and  officers  certnined,  cer- 
of  the  house  of  commons  and  the  engrossing  clerks,  shall  be  '  "  '""  P'"  • 
ascertained  by  the  principal  clerk  of  the  house  of  commons, 

and  certified  by  the  speaker  thereof;  and  the  sums  so  certified 
shall  be  passed  as  public  accounts,  and  paid  by  the  treasurer. 

12.  The  private  secretary  of  the  governor  shall  be  allowed  Fees  of  govern- 
the  following  fees,  and  no  other,  to  be  paid  by  the  persons  for  ™j*.J't",yf'* 
whom  the  services  are  rendered,  namely :  for  the  commission 

of  a  judge,  four  dollars  ;  of  the  attorney-general,  two  dollars; 
of  a  solicitor,  two  dollars ;  of  a  senator  in  congress,  two  dol- 
lars ;  of  a  representative  in  congress,  two  dollars ;  of  a  notary- 
public,  two  dollars  ;  for  any  commission  for  a  place  of  profit, 
two  dollars  ;  for  a  testimonial,  one  dollar;  for  suspension  of  a 
grant,  seventy-five  cents  ;  for  affixing  the  seal  to  a  grant,  twen- 
ty-five cents. 

VS.  The  secretary  of  State  shall  be  allowed,  besides  his  Of  secretary  of 
salary,  the  following  compensation  and  fees,  namely :  for  fur-  ''''®' 
nishing  the  public  printer  with  copies  of  the  laws,  two  dollars 
for  each  law,  and  fifty  cents  for  each  resolution,  to  be  paid  by 
the  public  treasurer,  upon  the  warrant  of  the  governor;  copy- 
ing and  certifying  a  will  not  exceeding  two  copy  sheets,  fifty 
cents,  and  for  every  additional  copy  sheet,  ten  cents ;  correct- 
ing an  error,  not  made  by  himself,  in  a  patent,  fifty  cents  ; 
copying  and  certifying  the  record  of  a  grant  or  patent,  contain- 
ing not  more  than  six  hundred  and  forty  acres,  fifty  cents ; 
copying  and  certifying  a  grant,  or  patent,  or  plot  and  survey, 
containing  more  than  six  hundred  and  forty  acres,  fifty  cents 
for  each  warrant  contained  in  such  grant,  patent,  or  plot, 
not  to  exceed  five  dollars  for  one  copy ;  receiving  surveyor's 
return,  making  out,  recording,  and  indorsing  gi-ant,  sixty  cents  ; 
each  search,  ten  cents;  each  certificate,  ten  cents;  recording 
deeds  or  other  evidences  of  title,  for  land  purchased  for  the  use 
of  the  State,  the  same  fees  that  registers  are  entitled  to  for 
deeds  or  like  services ;  filing  and  recording  a  copy  of  the  judg- 
ment vacating  a  grant,  and  all  other  services  thereon,  fifty 
cents ;  copying  an  entry  from  the  journals  of  the  Assembly, 
forty  cents;  copying  and  certifying  the  laws  of  other  States, 
twenty  cents  for  each  copy  sheet,  —  to  be  paid  by  the  treasurer 
for  all  copies  furnished  for  the  use  of  the  State,  and  by  indi- 
viduals for  copies  furnished  for  their  own  use  ;  receiving  articles 
of  agreement,  and  filing  and  recording  letters  patent,  one  dol- 
lar :  and  in  all  cases  not  provided  for  above,  the  secretary  of 
State  shall  receive  the  same  fees  for  copies  of  records  from 
his  office,  that  are  allowed  by  law  to  registers. 
46* 


546 


Of  attorney- 
general  and  so- 
iic'rs  for  State, 


In  supreme 
court. 


Of  county  so- 
licitors. 


Of  attorneys  at 
law. 


SALARIES   AND   FEES.  [ChAP.    102. 

14.  The  attorney-general  and  solicitors  for  the  State  shall, 
in  addition  to  the  general  compensation  allowed  them  by  the 
State,  receive  the  following  fees,  and  no  other,  namely:  for 
every  indictment  which  they  may  prosecute  for  a  felony,  per- 
jury, forgery,  counterfeiting,  passing,  or  attempting  to  pass  or 
sell,  any  forged  or  counterfeited  paper  or  evidence  of  debt ; 
maliciously  injuring  or  attempting  to  injure  any  railroad,  or 
railroad  car,  or  any  person  travelling  on  such  railroad  ;  stealing 
or  obliterating  records ;  stealing,  concealing,  destroying,  or  ob- 
literating any  will ;  maliciously  burning  or  attempting  to  burn 
houses  or  bridges ;  misdemeanors  of  accessories  after  the  fact 
to  felonies ;  and  for  circulating  seditious  writings  among  slaves 
and  free  negroes,  and  for  persuading  them  to  conspiracy  and 
rebellion,  each  of  them  shall  receive  ten  dollars  upon  convic- 
tion of  the  defendant,  to  be  paid  by  him  :  for  every  indictment 
for  frauds,  deceits,  maim,  and  escapes,  five  dollars ;  and  for  all 
other  offences,  four  dollars,  to  be  paid  as  aforesaid,  and  in  no 
other  manner  whatever,  except  in  cases  where  the  court  shall 
be  of  opinion  that  the  prosecution  is  frivolous  and  malicious, 
and  may  order  the  prosecutor  to  pay  the  costs,  including  a  tax 
fee.  Provided,  nevertheless,  that  no  larger  fee  than  tendollars 
shall  be  taxed  for  the  attorney-general  or  solicitor,  in  any  in- 
dictment against  the  justices  of  the  peace  of  any  county,  as 
justices,  when  there  are  more  than  three  justices  who  arc  found 
guilty :  and  in  all  appeals  to  the  supreme  court,  of  persons 
convicted  of  criminal  offences,  a  fee  of  ten  dollars  against  each 
person  who  shall  not  reverse  the  judgment,  shall  be  allowed 
the  attorney-general,  to  be  taxed  among  the  costs  of  that 
court. 

15.  The  county  solicitor  shall  not  be  entitled  to  receive  fees 
in  any  case,  but  on  conviction  of  the  defendant ;  and  then  he 
shall  receive  four  dollars  for  each  defendant  convicted,  to  be 
paid  by  the  defendant,  and  in  no  other  way  whatever,  except 
in  cases  adjudged  to  be  frivolous  and  malicious,  when  the 
court  may  tax  a  fee,  to  be  paid  as  provided  in  the  preceding 
section. 

16.  Fees  to  be  taxed  for  attorneys  or  parties  in  suits  in  the 
supreme  and  other  courts,  shall  be  as  follows,  namely  :  in  a  suit 
in  equity,  twenty  dollars;  in  a  suit  at  law  in  the  supreme 
court,  ten  dollars;  in  a  suit  in  any  of  the  superior  or  county 
courts,  where  the  title  of  land  may  come  in  question,  ten  dol- 
lars;  in  all  other  suits,  originally  commenced  in  the  superior 
or  county  courts,  four  dollars ;  in  appeals  from  any  other  court 
to  the  superior,  the  same  fee  as  in  the  court  below;  in  every 
appeal  from  a  judgment  of  a  justice  of  the  peace  to  the  supe- 
rior court,  four  dollars,  and  to  the  county  court,  two  dollars  ; 
in  a  petition  for  dower,  where  the  suit  may  be  brought  at  law, 
four  dollars ;  and  no  fee;  shall  be  taxed  on  any  order  for  sale  of 
lands  levied  on  under  an  execution  issued  by  a  justice  of  the 
peace,  unless  where  the  same  may  be  opposed:  nor  in  eases 
where  a  bond  shall  be  taken  and  returned  under  the  law  for 


Chap.  102.]  salaries  and  fees.  547 

the  relief  of  insolvent  debtors,  unless  where  an  is.sue  shall  be 
made  np;  nor  shall  any  fee  be  taxed  in  the  case  of  a  petition 
to  rehear  any  decree  made  either  at  law  or  in  equity,  which 
may  be  filed  before  the  actual  enrolment  of  the  final  de- 
cree in  the  cause ;  and  such  fees  shall  be  taxed  for  counsel.  Attorneys  for 
appearing  for  the  State  in  civil  cases,  to  be  paid  by  the  defend-  f^'^H  '"  ""'^ 
ant  on  the  rendition  of  judgment  against  him,  as  are  taxed  in 
like  cases,  when  the  suit  is  between  citizens. 

17.  The  clerks  of  the  courts  of  pleas  and  quarter-sessions  cicrks  of  coun- 
shall  receive  the  following  fees,  and  no  other,  namely:  for  Ji;'^™""'^""^^^ 
every  leading  process  returned  to  the  first  court,  including  all 
services,  together  with  dismission  or  final  judgment,  where 
either  happens  at  the  return  court,  one  dollar;  every  indict- 
ment, sixty  cents;  each  recognizance,  twenty  cents;  every 
reference  or  continuance  of  a  cause,  thirty  cents ;  every  judg- 
ment entered  after  the  return  court,  seventy-five  cents;  every 
sul:ipa'na,  provided  the  party  inserts  no  more  than  four  wit- 
nesses in  the  same,  fifteen  cents;  every  commission  to  take 
testimony,  twenty-five  cents ;  every  special  verdict,  or  demur- 
rer or  motion  in  arrest  of  judgment,  thirty  cents;  every  writ 
of  error  or  appeal,  with  the  transcript  of  record,  two  dollars  ; 
taking  and  recording  prosecution  bond,  forty  cents;  every  sub- 
poena, issuing  on  a  petition,  fifty  cents;  eve'ry  writ,  other  than 
leading  process,  or  subpoena  for  witnesses,  seventy-five  cents ; 
docketing  appeals,  and  entry  of  plea  or  default  in  the  same, 
one  dollar ;  trial  of  issue  on  insolvent's  schedule  or  bond,  sev- 
enty cents  ;  every  scire  facias,  sixty  cents  ;  docketing  consta- 
ble's levies,  including  all  services  in  court,  one  dollar;  and  it  is 
provided  that  the  creditors,  at  whose  instance  any  issue  with 
insolvents  shall  be  made  up,  shall  pay  costs  whenever  they 
shall  fail,  as  in  other  cases. 

For  every  execution  or  order  of  sale,  thirty-five  cents.  Final  process. 

For  proving  and  recording  at  length,  in  bound  books  kept  For  pro-ring, 
for  that  purpose,  and  filing  an  inventory,  account  of  sales,  or  ':<'™''J'"g.  , 

,  ,  1  -L'i     1    1  .  ,      .    .  '         riline,  search- 

account  current,  exhibited  by  an  executor,  administrator,  or  in^,  certifying, 
guardian,  or  for  search  and  certificate  of  the  amount  thereof,  •'";'' ™"="°e on 
if  the  estate  be  under  two  hundred  dollars,  the  clerk  shall  re-  ™'°"  '^*' 
ceive  twenty  cents;  if  above  two  hundred  and  under  one 
thousand  dollars,  forty  cents ;  if  above  one  thousand,  seventy- 
five  cents  and  no  more :  for  entering  on  the  minutes  the  pro- 
bate of  any  will,  qualifying  executors,  making  certificate,  and 
recording  the  will  in  a  bound  book  kept  for  that  purpose,  one 
dollar.  Provided,  hoioever,  that  when  any  such  inventory,  ac- 
count, or  will  shall  exceed  five  copy  sheets,  the  clerk  shall 
receive  ten  cents  for  each  additional  sheet.  For  every  search 
of  record  out  of  court,  ten  cents;  proving  or  entering  the  ac- 
knowledgment of  a  conveyance  of  land,  or  other  estate,  and 
certifying  the  same  with  order  of  registration,  and  examina- 
tion of  a  feme  eoverl  without  commission,  twenty  cents ;  for 
every  commission  to  examine  a. feme  covert,  twenty-five  cents; 
proving  or  taking  acknowledgment  of  a  deed  or  power  of  at- 


548  SALARIES   AND    FEES.  [ChAP.    102. 

toriiey,  and  certifying  the  same,  including  order  of  registration, 
twenty  cents;  every  certificate  for  witnesses'  or  jurors'  attend- 
ance, ten  cents ;  alfixing  tiie  seal  of  oflke,  and  writing  the 
necessary  certificate,  on  any  instrument  requiring  the  same, 
twenty-five  cents;  every  certificate,  without  the  seal  of  office, 
when  the  sanne  is  not  otherwise  directed  to  be  paid,  twenty 
cents ;  recording  a  mark  or  brand,  and  giving  a  certificate 
thereof,  ten  cents  ;  issuing  a  warrant,  on  entry  of  land,  by  order 
of  the  court,  forty  cents  ;  enrolling  divisions  of  estates,  for  each 
lot,  twenty  cents;  every  certificate  of  inn,  ordinary,  or  tavern 
license  and  bond,  with  a  copy  of  rates,  one  dollar;  recording 
processioner's  certificate,  twenty  cents ;  every  search  of  entry- 
taker's  books,  ten  cents ;  filing  insolvent's  schedule,  bond,  and 
all  other  services  in  court  thereupon  without  trial  by  jury, 
one  dollar;  recording  the  decree  of  the  court  upon  a  petition 
for  the  legitimation  of  a  bastard  child,  one  dollar;  for  each 
description  of  a  slave  or  free  negro  and  certificate  thereof, 
fifty  cents. 

For  copying.  For  every  copy  of  a  record,  not  exceeding  five  copy  sheets, 

ten  cents  for  each  copy  sheet  of  ninety  words,  and  five  cents  for 
each  copy  sheet  after  five.  Provided,  that  the  total  amount  of 
fees,  charged  for  any  one  record,  or  will,  shall  not  exceed  five 
dollars ;  every  order  or  rule,  foreign  to  the  cause,  with  a  copy 
of  the  same,  if  required,  twenty  cents ;  every  copy  of  a  peti- 
tion, by  the  copy  sheet,  ten  cents  ;  every  copy  of  location  from 
entry-taker's  books,  ten  cents ;  for  declaration  of  a  foreigner, 
wishing  naturalization,  copy  and  seal,  one  dollar  and  fifty 
cents ;  final  entry  of  order  of  naturalization,  copy  of  the  same 
and  seal,  one  dollar  and  fifty  cents. 

For  bonds,  li-        For  every  marriage  license  and  bond,   seventy-five  cents; 

censes,  notices,  every  guardian  and  other  bond  taken  in  court,  for  which  no 
other  special  fee  is  allowed,  sixty  cents ;  granting  administra- 
tion, taking  bond,  and  other  services  thereon,  eighty  cents; 
every  indenture  for  binding  apprentices,  sixty  cents;  taking 
an  account,  such  sum  as  the  court  may  allow  not  exceeding 
fifty  dollars  ;  every  order  of  court  authorizing  license  to  retail- 
ers, eighty  cents;  issuing  license  to  hawk  or  peddle,  eighty 
cents  ;  correcting  or  certifying  an  error  in  a  patent,  forty  cents  ; 
every  guardian's  notice  for  renewal  of  bonds,  return,  or  settle- 
ment of  accounts,  sixty  cents. 

Of  clerks  of  su-      18.    The  clerks  of  the  superior  courts  of  law  shall  receive 

periorcoui  .  ^^^  filing  a  transcript  of  appeal  to  the  supreme  court,  two  dol- 
lars ;  and  for  all  other  services,  shall  receive  the  same  fees  as 
are  allowed  the  clerks  of  the  county  courts,  and  no  other. 

No  fee  on  capi-      19.    No  clerk  of  the  county  or  suiierior  court  sliall  charge  a 

<M  in  certain       e       e  •  i  )?•  ii-.  • 

oases.  Ice  lor  any  rajnas  ad  respondendum,  issued  during  term  time, 

and  returnable  instanler,  unless  the  same  be  executed. 

incertamst^i''''      20.    In  ail  State  ca.scs,  where  there  shall  be  a  7iol/e  prosequi 

A^i^hetias  to  entered,  or  the  defendant  shall  be  acquitted,  or  convicted  and 

have  ouly  half  be  unable  to  pay  the  costs,  and  the  coiu-t  shall  not  order  the 

prosecutor  to  pay  the  same,  the  county  shall  pay  the  clerks 


Chap.  102.]  salaries  and  fees.  549 

and  sheriffs  half  their  fees  only  ;  except  in  felonies,  or  prosecu- 
tions for  forgery,  perjury,  larceny,  conspiracy,  and  such  ofl'en- 
ces  mentioned  in  section  fourteen,  for  the  prosecution  whereof, 
the  attorney-general  is  allowed  a  fee  of  ten  dollars  in  the 
superior  court,  when  they  shall  receive  full  fees. 

21.  The  sheriff  shall  receive  the  following  fees,  and  no  siieriffe' fees 
other,  namely:  for  every  arrest,  seventy-five  cents;  every  "ess^^sui^pfjlnl 
bail  or  replevin  bond,  twenty-five  cents  ;  service  of  a  copy  of  -"^i  orcier»,  &c. 
declaration  in  ejectment,  sixty  cents ;  service  of  subpoena,  with 
a  copy  of  petition,  sixty  cents ;  service  of  a  copy  of  declara- 
tion, ten  cents;  service  of  every  scire  facias,  sixty  cents;  every 
attachment  levied,  seventy-five  cents  ;  and,  if  further  trouble 
by  moving  of  goods,  a  sum  to  be  taxed  by  the  court ;  every 
replevy  bond  upon  attachment,  twenty -five  cents;  every  sub- 
poena served,  for  each  person  named  therein,  thirty  cents  ;  sum- 
moning commissioners  to  divide  real  estate,  and  qualifying 
them,  thirty  cents  each,  to  be  paid  in  just  proportions  by  the 
claimants  ;  every  notice  to  take  depositions,  thirty  cents ;  every 
notice  required  to  be  given  in  any  cause,  motion,  or  proceed- 
ing, at  law  or  in  equity,  as  well  for  commencing  as  in  prose- 
cuting the  same  until  the  final  termination,  the  same  fee  as 
for  serving  a  subj^Qsna ;  summoning,  impanelling,  and  attend- 
ing on  every  jury  in  each  cause  in  court,  and  calling  the  same, 
ten  cents  ;  where  a  special  venire  for  any  purpose,  in  or  out  of 
court,  shall  issue  by  order  of  a  court,  for  summoning  each 
juror,  twenty  cents  ;  for  serving  and  attending  any  person  on 
a  habeas  corpus,  one  dollar  and  fifty  cents  per  day;  apprehend- 
ing any  criminal,  one  dollar ;  summoning  guardian  to  renew 
his  bond,  make  return,  or  settle  his  accounts,  sixty  cents,  to  be 
paid  by  the  guardian  ;  service  of  notice  to  arbitrators,  referees, 
and  commissioners  to  take  an  account,  thirty  cents ;  for  noti- 
fying wardens  of  the  poor  of  their  day  of  meeting,  thirty 
cents. 

For  executing  a  capias  ad  satisfaciendum,  issued  from,  and  On  final  pro- 
returnable  to,  a  court  of  record  beyond  the  sheriff's  own  '^'^^^' 
county,  and  carrying  the  defendant  and  confining  him  in 
the  jail  of  such  county,  three  dollars  for  every  thirty  miles 
travelling  from  his  own  house  to,  and  from,  the  jail ;  and 
the  sheriff  shall  set  forth  in  his  return  upon  the  writ,  the  dis- 
tance from  his  residence  to  the  jail  wherein  he  may  have  con- 
fined the  defendant;  the  truth  of  which  return  shall  be  veri- 
fied on  oath  before  the  clerk,  and  his  fee  taxed  and  col- 
lected as  his  other  fees  ;  for  putting  a  person  in  the  stocks  or 
pillory,  fifty  cents  ;  every  commitment  or  release,  thirty  cents  ; 
every  writ  of  possession,  one  dollar ;  every  levy  by  virtue  of 
an  execution,  seventy-five  cents ;  execution  and  decent  burial 
of  any  criminal,  ten  dollars. 

For  keeping  a  criminal  in  jail  per  day,  the  sum  allowed  and  For  kpepin» 
fixed  by  each  county  court,  as  now  directed  by  law ;  maintain-  cri',„in™s7'^ '"^ 
ing  any  slave  or  other  property,  or  any  criminal  seized  by  vir-  unaintniniug 
tue   of  any  legal  precept,  such  sum  as  may  be  fixed  by  the  s''''*'^*>  ^^<:- 


550 


SALARIES   AND   FEES. 


[Chap.  102- 


county  court;  conveying  any  criminal  or  other  person  under 
arrest,  to  that  jail  where  he  ought  to  be  conveyed,  ten  cents  per 
mile,  and  five  cents  for  each  person  composing  the  guard. 
Prodded,  the  number  shall  not  exceed  four  persons,  and  if 
more  than  four  shall  be  absolutely  necessary,  two  cents  per 
mile  for  each  of  said  guard;  for  each  day  the  sheriff'  shall 
maintain  such  prisoner,  he  shall  receive  fifty  cents,  the  expense 
to  be  paid  by  tlie  proper  county,  if  the  prisoner  shall  not  be 
liable  or  able  to  pay  the  same. 

For  all  moneys,  collected  by  him  by  virtue  of  any  levy,  or 
executing  a  writ  of  distress,  or  an  execution  against  the  body, 
two  and  a  half  per  centum;  and  the  like  commission  for  all 
moneys  that  may  be  paid  to  the  plaintiff  by  the  defendant, 
while  such  precept  is  in  the  hands  of  the  sheriff  and  after  levy 
or  executing  the  distress  or  execution  against  the  body. 

For  service  of  equity  process,  and  sales  and  orders  inci- 
dental thereto,  the  same  fees  as  for  the  like  service  at  law. 

22.  No  sheritT  shall  take  a  commission  on  any  moneys  col- 
lected on  an  execution  issued  by  a  justice  of  the  peace  ;  nor 
any  other  fees,  unless  they  be  allowed  by  law. 

23.  The  clerks  of  superior  and  county  courts  shall  keep  a 
fees"''po°tefup  copy  of  this  chapter,  in  relation  to  the  fees  of  clerks  and 
in  their  offices,  sheriffs,  posted  up  in  their  respective  offices,  and  in  the  court 

house,  in  some  conspicuous  place,  during  the  sitting  of  each 
court,  under  a  penalty  of  fifty  dollars. 

24.  The  clerks  of  the  supreme,  superior,  and  county  courts, 
where  suits  are  determined  and  the  fees  are  not  paid  by  the 
party  from  whom  they  are  due,  shall  sue  out  executions, 
directed  to  the  sheriff  of  any  county  in  the  State,  who  shall 
levy  them  as  in  other  cases ;  and  to  the  said  execution  shall 

Bill  of  costs  to  be  annexed  a  bill  of  costs,  written  in  words,  so  as  plainly  to 
show  each  item  of  costs,  and  on  what  account  it  is  ta.xed  ; 
and  all  executions  for  costs,  issuing  without  such  a  bill  an- 
nexed, shall  be  deemed  irregular,  and  may  be  set  aside  as  to 
the  costs,  at  the  return  term,  at  the  instance  of  him  against 
whom  it  is  issued. 
Salary  .and  25.    The  clerjc  of  the  supreme  court  shall  receive  an  annual 

lupreme'cour"!  ^^'^'T  of  three  hundred  dollars,  to  be  paid  semiannually,  on  a 
certificate  of  the  judges ;  and,  in  addition  thereto,  the  follow- 
ing fees,  namely :  for  recording  the  papers  and  proceedings  in 
the  causes  decided  in  the  supreme  court,  which  arc  required 
by  law  to  be  recorded,  such  compensation  as  may  be  esti- 
mated by  the  judges  of  the  court  at  each  term,  not  to  exceed 
thirty  cents  for  each  page  recorded,  to  be  paid  by  the  treasurer, 
on  the  certificate  of  the  judges;  for  entering  an  appeal,  or  re- 
moval of  a  cause,  one  dollar  ;  and  the  same  fees  as  are  allowed 
to  clerks  and  masters  in  equity  for  similar  services,  in  all 
matters  relating  to  causes  in  equity;  for  entering  an  appeal  in 
a  case  at  law,  one  dollar;  a  continuance,  thirty  cents;  Si  scire 
/fflda.?,  eighty  cents;  a  certiorari,  eighty  cents;  for  a  determi- 
nation, two  dollars;  a  certificate,  sixty  cents;  a.  fieri  facias,  or 


Sheriff's  com 
missions. 


Service  of  equi 
ty  process. 

No  commis- 
sions on  jus- 
tice's exeeu- 
tion. 

Clerics  to  Iceep 


May  issue  ex- 
ecution for  fees 
in  certain 


Chap.  102.]  salaries  and  fees.  551 

other  execution,  fifty  cents  ;  a  seal,  twenty-five  cents ;  and  for 
a  transcript,  or  copy  of  a  record,  twenty  cents  for  each  copy 
sheet. 

26.  The  clerk  and  master  in  equity  shall  receive  the  follow-  or  clerk  anJ 
ing  fees,  and  no  other,  namely  :  for  a  report  on  an  answer,  thirty  ^^f^'^'' '" 
cents  ;  report  on  a   plea  and  answer,  forty  cents  ;  report  on  a      '  ^' 
demurrer  and  answer,  forty  cents ;  an  affidavit  to  an  answer, 

fifteen  cents;  an  affidavit  to  a  bill,  fifteen  cents;  a  separate 
affidavit,  twenty  cents ;  copying  a  report  by  the  office  copy 
sheet,  twenty  cents  ;  a  report  stating  an  account  to  be  allowed 
by  the  court,  a  sum  not  to  exceed  fifty  dollars;  copies  of  pro- 
ceedings and  exemplification,  by  the  copy  sheet,  twenty  cents  ; 
taking  a  bond,  fifteen  cents ;  a  rule  given  for  service,  twenty- 
five  cents  ;  a  rule  not  for  service,  fifteen  cents ;  a  subpcena,  writ, 
or  other  process,  one  dollar ;  a  commission,  fifty  cents ;  an 
injunction,  one  dollar;  drawing  a  decree,  by  the  copy  sheet, 
forty  cents;  enrolling  a  bill  or  answer,  by  the  copy  sheet, 
twenty  cents;  entering  a  plea  or  demurrer,  twenty  cents; 
recording  depositions  to  perpetuate  testimony,  by  the  copy 
sheet,  twenty  cents  ;  a  dismission,  twenty  cents ;  a  search,  ten 
cents;  taking  security  on  a  leading  process,  twenty  cents; 
recording  each  bond,  twenty  cents;  for  affixing  the  seal  to  any 
writing  requiring  it,  twenty-five  cents;  for  transcript  to  the 
supreme  court,  two  dollars  ;  for  taking  depositions  in  equity, 
to  such  fees  as  may  be  allowed  by  the  court  to  which  the 
commission  is  returnable,  to  be  taxed  as  other  costs. 

27.  The  county  trustee  shall  receive,  as  a  compensation  in  Compensation 
full  for  all  services  required  of  him  by  law,  such  a  per  centum,  °J^e™"°'^' ''""'" 
not  exceeding  six,  upon  the  amount  of  his  receipts  and  dis- 
bursements,  as  the  county   court,  a  majority  of  the  justices 

being  present,  shall  deem  adequate  and  proper. 

28.  The   coroner   shall  receive  the   following  fees,  and  no  Fees  of  coro- 
other,   namely:  for  attending  on  an  inquest,  five  dollars,  and  "^"• 
twenty  cents  for  every  juror  summoned  to  attend  the  inquest, 

to  be  paid  by  the  county ;  for  decently  interring  the  body  of 
any  white  man,  or  free  person  of  color,  over  whom  he  has  held 
an  inquest,  such  sum,  not  exceeding  ten  dollars,  as  the  county 
court,  seven  justices  being  present,  may  order,  to  be  paid  by  the 
county,  if  the  friends  of  the  deceased  shall  refuse  or  neglect  to 
inter  the  body;  which  sum  shall  be  charged  against  the  estate 
of  the  deceased,  and  the  county  trustee  may  recover  it  by  a 
warrant;  for  decently  intemng  the  body  of  any  slave,  over 
whom  he  has  held  an  inquest,  the  same  sum,  to  be  allowed  and 
paid  in  like  manner,  if  the  master  or  owner  shall  refuse  or 
neglect  to  inter  the  body ;  which  sum  the  master  or  owner 
shall  pay  back  to  the  county  trustee,  who  may  warrant  for  the 
sanie :  for  discharging  the  duties  of  sheriff,  in  the  cases  pre- 
scribed by  law,  the  same  fees  as  the  sheriff  would  be  entitled 
to  for  performing  the  like  services. 

29.  A  constable   shall  receive  the  following   and  no  other  Of  constabica. 
fees,  namely  :  for  every  day's  attendance  on  court,  wlien  sum- 


552  SALARIES   AND    FEES.  [ChAP.    102- 

moned,  one  dollar  and  fifty  cents ;  whipping  a  slave,  by  order 
of  any  justice  of  the  peace,  thirty  cents  ;  serving  a  warrant,  for 
each  person  named  tlierein,  forty  cents  ;  summoning  a  witness, 
twenty  cents ;  an  execution  levied,  forty  cents ;  an  attach- 
ment levied,  fifty  cents;  a  bail-bond,  twenty-five  cents;  serv- 
ing notice  on  bail,  forty  cents;  serving  a  notice,  that  may 
be  required  by  law  to  be  given  for  commencing  or  prosecut- 
ing any  cause  before  a  justice  of  the  peace  out  of  court,  thirty 
cents. 
Of  registers.  gg    ^  register  shall  receive  the  following  fees,  and  no  other, 

namely:  for  registering  each  deed  or  grant,  containing  one 
ti'act  of  land,  including  the  certificate,  not  less  than  forty,  nor 
more  than  one  hundred  cents;  if  the  deed  contain  two  or 
more  tracts,  not  less  than  forty,  nor  more  than  one  hundred 
cents  for  the  first  tract,  and  not  less  than  ten,  nor  more  than 
twenty  cents  for  every  other,  and  the  like  fees  for  copies  ;  for 
registering  the  acknowledgment  and  certificate  of  a.  feme  covert, 
in  the  conveyance  of  lands  or  other  estate,  an  additional  fee 
of  twenty-five  cents,  and  the  like  fees  for  copies  ;  for  register- 
ing divisions  of  lands,  for  each  lot  or  dividend  therein  described 
not  less  than  ten  cents,  nor  more  than  twenty  cents,  and  the 
same  fees  for  copies ;  for  registering  copies  of  rectified  errors  in 
patents  or  grants,  not  less  than  forty,  nor  more  than  one  hun- 
dred cents ;  registering  decrees  of  court,  operating  as  deeds, 
one  dollar;  registering  all  other  instruments  of  writing,  for 
each  instrument,  not  less  than  forty,  nor  more  than  one  hun- 
dred cents ;  for  a  search,  ten  cents. 
County  court  31.  Any  county  court,  (a  majority  of  the  justices  being  pres- 
te?3  fees wUhin  ^"t>)  ^^Y  establish  and  regulate  the  fees  of  the  register  of  the 
eertain  limits,  county,  within  the  limits  prescribed  in  the  preceding  section  ; 
and  when  the  fees  are  so  established,  they  shall  not  be  altered 
by  the  court  within  one  year.  And  if  the  county  court  shall 
not  establish  the  fees,  as  aforesaid,  then  the  fees  of  the  register 
shall  be  at  the  minimum  rates  prescribed. 
Of  entry-taker.  32.  Entry-takers  shall  receive  the  following  fees,  and  no 
other,  namely  :  for  an  entry,  including  all  services,  forty  cents  ; 
issuing  each  duplicate  warrant,  when  thereto  required,  twenty- 
five  cents. 
Ofcotinty  ser-  33.  Surveyors  appointed  by  courts  to  survey  any  lands,  the 
ehaia'carriers.  boundaries  of  which  may  come  in  question  in  any  suit  or  pro- 
ceeding depending  therein,  or  called  upon  by  the  commission- 
ers to  assist  in  surveying  and  dividing  the  lands  of  intestates 
or  others,  held  in  common,  shall  receive  the  following  fees,  and 
no  other,  namely  :  for  every  survey  on  an  entry  containing 
three  hundred  acres,  or  less,  one  dollar  and  sixty  cents;  and 
for  every  hundred  more  than  that  quantity,  forty  cents  ;  for 
surveying  lands  in  dispute,  by  order  of  court,  travelling  to  and 
from  the  place,  and  performing  the  duty,  two  dollars  per  day, 
or  such  greater  sum  as  tlic  court  may  allow ;  for  assisting  in 
the  surveying  and  dividing  the  lands  of  intestates,  or  others, 
held  in  common,  when  called  upon  by  the  commissioners  ap- 


Chap.  102.]  salaries  and  fees. 


553 


pointed  to  make  partition,  or  it)  laying  off  dower,  travelling  to 
and  from  the  place,  and  performing  the  duty,  two  dollars  per 
day.  In  all  surveys  made  by  order  of  the  court,  the  chain  car- 
riers shall  be  allowed  such  compensation  as  the  court  may  de- 
termine, not  exceeding  one  dollar  each  per  day  ;  and  in  mat- 
ters of  disputed  boundary,  which  may  come  in  question  in  any 
suit,  the  court  may  make  to  the  surveyor  such  allowance  for 
plots  as  it  may  deem  reasonable,  which,  with  the  allowance  to 
chain-carriers,  shall  be  taxed  as  costs. 

34.  Rangers  shall  receive  the  following  fees,  and  no  other,  Of  rangers. 
namely:  for  entering  each  horse,  mare,  gelding,  colt,  mule,  ass, 

or  jenny,  including  the  certificate,  fifty  cents  ;  for  entering  each 
head  of  neat  cattle,  twenty-five  cents ;  for  entering  each  head 
of  hogs  or  sheep,  ten  cents  ;  for  a  bond,  twenty  cents ;  for  ad- 
vertising such  strays  as  are  required  to  be  advertised,  one  dol- 
lar and  fifty  cents ;  for  a  search,  ten  cents. 

35.  Commissioners  of  affidavits,  and  those  who  are  author-  ofoommissioiv- 
ized  bylaw  to  act  as  such,  shall  receive  the  following  fees,  «>-^°f''ffidavits. 
and  no  other,  namely  :  for  an  affidavit  taken  and  certified,  forty 

cents ;  affixing  the  seal  of  court,  when  necessary,  twenty-five 
cents. 

36.  Processioners  shall  receive  the  same  fees  which  are  al-  Of  procession- 
lowed  by  law  to  county  surveyors. 

37.  Standard-keepers  shall  be  entitled  to  receive  the  follow-  Ofstandard- 
ing  fees,  and  no  other,  namely:  for  examining  and  adjusting  a    ^"P^"'^- 
pair  of  steelyards,  twenty-five  cents ;  every  weight  of  half  a 

pound  and  upwards,  five  cents  ;  every  set  of  weights  below 
half  a  pound,  including  one  piece  of  each  denomination,  five 
cents  ;  for  a  yard-stick,  or  other  measure  of  cloth,  five  cents  ; 
every  bushel,  half  bushel,  peck,  or  other  measure  used  in  meas- 
uring grain,  meal,  or  salt,  ten  cents  ;  each  measure  for  liquors 
or  wines,  three  cents. 

38.  Jailers  shall  receive,  for  finding  prisoner  fuel,  one  pound  Of  jailers. 
of  wholesome  bread,  one  pound  of  good  roasted  or  boiled  flesh, 

and  a  sulTicient  quantity  of  water,  with  every  necessary  at- 
tendance, thirty  cents  per  day,  and  no  more ;  unless  the  court 
of  pleas  and  quarter-sessions,  a  majority  of  the  justices  being 
present,  shall  deem  it  expedient  to  increase  his  fees,  which 
they  may  do,  provided  such  increase  does  not  exceed  fifty  per 
cent,  on  the  above  sum,  which  shall  be  recorded,  and  shall  not 
be  altered  within  one  year  thereafter. 

39.  Inspectors  shall  receive  the  following  fees,  for  the  duties  Of  inspectors. 
required  of  them,  and  no  other,  namely  :  for  inspecting  ton  tim- 
ber, twenty  cents  per  thousand  feet;  inspecting,  turning  up, 
coopering,  finding  nails,  hoops,  and  issuing  a  note  for  every 
hogshead  of  tobacco,  seventy  cents  ;  inspecting  transfer  to- 
bacco, at  the  rate  of  five  cents  per  hundred  pounds ;  inspecting 

a  barrel  of  flour,  five  cents  ;  a  barrel  of  pork  or  beef,  ten  cents ; 
a  barrel  of  rice  or  butter,  six  and  a  fourth  cents ;  a  barrel  of 
fish,  three  cents;  each  barrel  of  tar,  pitch,  or  turpentine,  two 
and  £1  half  cents,  to  be  paid  by  the  purchaser ;  every  thousand 
47 


554 


SEAT   OF   GOVERNJIENT.  [ChAP.    103. 


Of  tobacco 
pickers. 

Fees  of  no- 
taries.— R.  S. 
c.  78,  s.  3.— 
1846,  c.  69. 


Dates  and  fig 
ures,  how 
reclioned  in 
copy  slieet. 


shingles,  two  and  a  half  cents ;  every  thousand  feet  of  boards, 
plank,  or  scantling,  thirty  cents  ;  every  barrel  of  flax-seed  con- 
taining seven  and  a  half  bushels,  ten  cents. 

40.  Tobacco-pickers,  for  every  one  hundred  pounds  picked 
and  prized,  shall  receive  the  fifteenth  part. 

41.  Notaries  proper,  and  other  persons  acting  as  such,  shall 
be  allowed  one  dollar  for  all  services  on  a  protest  for  non-ac- 
ceptance, or  for  non-payment,  or  for  both  when  done  at  the 
same  time,  of  any  order,  draft,  note,  bond,  or  bill,  or  any  other 
thing  necessary  to  be  protested.  For  other  necessary  services, 
where  no  fee  is  fixed,  they  shall  be  allowed  twenty  cents  for 
every  ninety  words.  Provided,  however,  that  cases  of  protest 
concerning  vessels  or  their  cargoes  shall  not  be  affected  by  this 
chapter. 

42.  In  reckoning  the  number  of  words  in  a  copy  sheet, 
every  date,  or  amount  of  money,  expressed  in  figures,  as  18.55, 
$250.90,  shall  be  estimated  and  charged  as  one  word. 


Sect.  21.  Sheriff's  commissions,  3  D.  &  B.  73,  i  Hawks,  1 ;  n-lio  entitled  to,  3  Dev.  38. 
Sect,  26.  Subposnas  for  witnesses,  7  Ire.  Eq.  33.     County  attorney,  on  scire  facias,  vs 
guardian,  3  Hawks,  238. 


CHAPTER    103. 


SEAT  OF   GOVERNMENT. 


Section- 

1.  City  of  Raleigh  to  be  seat  of  govern- 
ment. 

3.  Governor  and  others,  a  board  to  take 
charge  of  public  buildings  and  lots. 
May  sue  for  injuries  thereto. 

S.  Shall  furnish  offices,  and  appoint  a 
keeper  of  capitol.  Duty  and  pay  of 
keeper.  Board  to  secure  capitol 
froiQ  fire. 


Section 

4.  Rooms    not  to  be    used  as  sleeping 

apartments.    Keeper  to  keep  keys. 

5.  Appropriation  of  rooms. 

6.  Keeper  to  give  bond. 

7.  Disorderly  conduct  in  capitol  prohib- 

ited.    Penalty. 

8.  Penalties  against  infants,  paid  by  pa- 

rent or  guardian. 


City  of  Raleigh 
to  be  seat  of 
government.  — 
R.S.c.l07,s.l. 


Governor  and 
others,  a  board 
to  talce  charge 
of  public  build- 
ings and  lots. 
May  sue  for  in- 
juries thereto. 
— R.S.c.l07,s. 
2.  — 1840,  c.  3. 


1.  The  city  of  Raleigh  shall  be  deemed  and  considered  the 
permanent  and  unalterable  seat  of  government  of  the  State ; 
the  place  for  holding  the  meetings  of  the  General  Assembly, 
and  the  place  of  residence  of  the  chief  officers  of  the  State. 

2.  The  governor,  secretary  of  State,  treasurer,  and  comp- 
troller, are  hereby  constituted  a  board  to  take  charge  of,  and 
keep  in  repair,  the  buildings  belonging  to  the  State,  in  the  city 
of  Raleigh,  and  shall  have  charge  of  the  public  lots  belonging 
to  the  State ;  and  in  the  name  of  the  State  may  institute  an 
action  on  the  case,  or  trespass,  for  damages  done  to  the  said 
buildings  or  lots ;  and  may  also,  in  the  name  of  the  State,  as 


Chap.  103.]  seat  of  government.  555 

lessor,  institute  actions  of  ejectment  to  remove  persons  from 
the  possession  of  any  of  the  lots. 

3.  The  board  shall  take  charge  of  and  keep  in  repair  the  Shall  furnish 
public  buildings   of  the  State  in  the   city  of  Raleigh;  shall,  "ffij'^f^^'^^p^P- 
from  time  to  time,  as  the  same  may  be  needed,  procure,  fur- of  capitoi. 
nish,  and  keep  in  repair,  for  the  public  offices  of  the  capitoi, 

all  necessary  office  furniture,  and  shall  appoint  some  suitable 
and  discreet  person,  removable   at  the  will  of  a  majority  of 
them,  who  shall  take  charge  of  the  capitoi  square  ;  take  care 
of  the  furniture,  sweep  and  cleanse  off  cobwebs  and  dust  from 
all  the  unoccupied  parts  of  the  buildings :  keep  the  keys  of 
the  several  doors  not  occupied  as  offices,  and  conduct  visitors 
through  the  capitoi,  whenever  requested  to  do  so  :  shall,  under  Duty  and  pay 
the  direction  of  the  board,  trim   or  remove  trees  standing  in  °f ''«'=?"• 
the  public  square,  and  remove  the  leaves  and  other  rubbish  as 
often  as  may  be  necessary  ;  and  shall  perform  any  other  duty 
required  by  this  chapter,  of  which  he  is  capable,  whenever  es- 
pecially ordered  by  the  board  so  to  do.     For  which  services 
the  keeper  shall  receive  a  reasonable  and  just  price  ;  which,  as 
well  as  all  other  expenditures  allowed  by  this  chapter,  shall  be 
paid  by  the  treasurer,  on  a  certificate  by  the  board,  of  the  work  go^^d  to  secure 
done  and  the  price  allowed  for  it.     The  board  at  all  times  capitoi  from 
are  required  to  use  such  means  as  may  secure  the  capitoi  from  8'"3;7.^i84.^''j. 
fire.  _       47,  s.  i. 

4.  The  rooms  in  the  capitoi  shall   not  be  used  as  sleeping  Rooms  not  to  be 
apartments,  and  no  bed  shall  be  kept  in  any  room  save  only  "ngap'artments.. 
that  used  by  the  keeper ;  and   he  shall  remove  all  beds  and  Keepe^to  keep' 
sleeping  couches,  which  may  be  introduced  by  any  person  into  ^'^i?!  s.  i.  "' 
any  of  the  rooms ;  and  shall  take  charge  of  and  keep  all  the 

keys  of  the  rooms,  except  only  such  as  are  used  by  the  heads 
of  the  departments ;  and  of  them  for  such  time  as  they  are 
not  so  used. 

5.  The  rooms  of  the  capitoi,  other  than  the  senate  chamber  Appropriation 
and  house  of  commons,  shall  be  appropriated  as  follows  :  —  cap?toi!— °  842, 
The  two  west  rooms  of  the  southern  division  of  the  capitoi  c.  54. 

shall  be  appropriated  to  the  executive  ;  the  south-east  room 
in  the  southern  division  shall  be  appropriated  to  the  comp- 
troller, and  the  room  adjoining  it  to  the  public  treasurer;  the 
two  east  rooms  in  the  northern  division  shall  be  appropriated 
to  the  supreme  court,  and  the  two  rooms  opposite,  to  the  sec- 
retary of  State  ;  the  upper  room  in  the  east  wing  to  the  State 
library  ;  and  the  room  number  three,  in  the  west  wing,  shall  be 
appropriated  and  set  apart  as  a  permanent  bureau  of  engi- 
neering. 

6.  Before  entering  upon  the  duties  of  his  office,  the  keeper  '^^'^l'"^^^''^ 
of  the  capitoi  shall  execute  bond  with  good  security,  in  the  ^^^  g,  2.  ' 
sum  of  two  hundred  and  fifty  dollars,  payable  to  the  State  of 

North  Carolina,  and  conditioned  for  the  faithful  discharge  of 
his  duties :  the  bond  shall  be  deposited  in  the  office  of  secre- 
tary of  State,  and  be  renewed  every  two  years  under  the  care 
of  the  board  ;  and  shall  be  put  in  suit,  whenever  in  their  judg- 


556 


SECRETARy   OF   STATE. 


[ClIAP.    104. 


Disorderly  con- 
iluct  in  capitol 
prohibited. 


Penaltv.  —  E. 
S.  c.  i07,  s.  4 

—  1642,0.47, 
s.  1. 


Penalties 
against  infants 
paid  by  parent 
or  guardian. — 
R.S.c.  107,8.5. 


mcnt,  the  conditions  thereof,  or  any  of  them,  may  have  been 
broken  ;  and  the  same  shall  not  be  discharged,  until  the  whole 
penalty  is  exhausted  in  damages. 

7.  All  rude  and  riotous  noises  and  disorderly  conduct  in  the 
capitol  are  forbidden,  under  a  penalty  of  five  dollars ;  and  any 
person  who  shall  write  or  scribble  on  the  walls  of  the  capitol, 
or  mark,  deface,  or  besmear  them,  or  shall  do  or  commit  any 
nuisance  in  the  capitol  building  or  any  part  thereof  or  near 
thereto,  shall  pay  a  like  penalty,  to  be  recovered  for  the  use 
of  the  State,  Isefore  the  intendant  of  police,  or  any  justice  of 
the  peace  for  Wake  county  :  and  the  said  keeper  shall  arrest 
such  as  are  guilty  of  violating  the  provisions  of  this  section, 
and  carry  them  immediately  before  said  intendant,  or  justice, 
and  prosecute  the  offender  for  the  penalty. 

8.  If  such  offence  be  committed  by  an  infant  under  the  age 
of  twenty-one  years,  his  guardian  or  parent,  (as  the  case  may 
be,)  shall  also  be  liable  to  the  penalty  prescribed  by  this  chap- 
ter, to  be  recovered  as  above  directed. 


CHAPTER    104. 


SECRETARY  OF   STATE. 


Section 

1.  Secretary  to  give  bond. 

2.  Form  of,  deposited  in  treasurer's  office. 

To  take  oaths. 

3.  To  take  receipts  for  grants.    May  send 

grants  by  mail. 

4.  Office  hours. 


Secretary  of 
State  to  "give 
bond. 

Form  of.— R. 
S.  c.  108,  s.  1  ; 
Const.,  Art.  1, 
3.  7. 


Deposited  in 

treasurer's 

office. 

To  take  oatlis. 

— B.  S.  c.  108. 


Section 

5.  Allowance  for  services  in  public  print- 

ing, and  postages. 

6.  To  purchase  stationery,  fuel,  &c.,  for 

public  offices. 

7.  His  accounts  for  expenses,  how  allow- 

ed and  paid. 


1.  The  governor  shall  take  from  every  person  appointed 
secretary  of  State,  before  he  enters  upon  the  discharge  of  the 
duties  of  his  ofHce,  a  bond  with  sufficient  security,  payable  to 
the  State  of  North  Carolina,  in  the  following  form,  namely: 
Know  all  men  by  these  presents,  that  we,  A.  B.  and  C,  are 
held  and  firmly  bound  unto  the  State  of  North  Carolina  in 
the  sum  of  twenty  thousand  dollars  ;  to  the  payment  of  which 
we  bind  ourselves  firmly  by  these  presents,  sealed  with  our 
seals,  and  dated  the  day  of  .  The  condition 
of  the  above  obligation  is  such,  that  whereas  the  above 
bounden  A.  is  appointed  secretary  of  State  for  the  State  of 
North  Carolina;  if  therefore  the  said  A.  shall  well  and  truly 
execute  and  discharge  the  duty  of  secretary  of  State  in  all 
cases,  agreeable  to  law,  then  the  above  obligation  to  be  void; 
otherwise,  to  remain  in  full  force  and  effect. 

2.  The  bond  of  the  secretary  shall  be  deposited  in  the  treas- 
urer's office  for  safe-keeping;  and  he  shall  take  the  oaths  pre- 
scribed for  public  officers,  and  also  the  oath  of  office. 


Chap.  105.]  sheriffs.  557 

3    The  secretary  shall  keep  a  receipt  book,  in  which  he  shall  To  tak<!  re- 
take  from  every  person,  to  whom  a  grant  shall  be  dclivciecl,  a  „^^'„tj 
receiptor  the  same;  and  he  may  inclose  grants  by  mail  +0  M.y^senJ_them 
any  person  requesting  him  to  do  so,  first  entering  the  same  on  J^j. 
the  receipt  book. 

4.  The  secretary  shall  attend  to  every  application  made  to  5;;ffi?<'J";'J^g^- 
him  for  official  duties  at  his  office,  (which  shall  be  in  the  city  y';  '  •  '  ' 
of  Raleigh,)  between  the   hours  of  nine   a'nd  twelve  o'clock, 

and  between  two  and  five  o'clock,  on  every  day  in  the  year, 
(Sundays  and  the  fourth  of  July  excepted). 

5.  For  the   duties  required   of  him  concerning  the   public  All"--"  ^°' 
printint',   he   shall  be  allowed,  every  two  years,  one  hundred  public  printing, 
dollars,  as  an  addition  to  his  salary,  to  be  paid  by  the  public  ^'^'IjPf  "i=|^_ 
treasurer;  and  he  shall  likewise  be  allowed  the  postage  by  him  i842,  c.  48. 
paid  on  all  official  matter.  „      ^     „     -„         u 

6.  He  shall  purchase  suitable  stationery  and  candles  for  the  T^nery  fuel, 
'executive  office,  departments  of  State,  General  Assembly,  the  &c.,  for  public 

supreme  court,  and  public  library,  upon  the  best  terms  the  °«\<^^.^--|,^*2,'. 
same  can  be  procured.     And  he  shall  contract  with  the  lowest  es. 
iDidder,  under  sealed   proposals,  for  the  necessary  fuel  for  the 
General  Assembly,  and  the  public  offices  in  the  capitol. 

7.  The  accounts  of  the  secretary  for  the  expenditures  afore-  ^^'^^^°^^^ 
said,  and  all  other  expenses  which  he  may  incur,  in  pursuance  j^^^^  allowed' 
of  any  law,  the  payment  whereof  is  not  otherwise  provided,  ^g^^Pf^-^ 
shall  be  passed  on,  and,  if  allowed  by  the  governor,  treasurer,  ^.  {J42,  o.'es, 
and  comptroller,  shall  be  paid  by  the  treasurer,  on  a  proper  s.  3. 
certificate  of  allowance. 


CHAPTER    105. 

SHERIFFS. 


Section 


1.  Sheriffs  elected. 

2.  Election,   when   held  ;    returns,   how 

made. 

3.  Person  having  highest  vote   elected. 

If  a  tie,  county  court  to  choose. 

4.  Returns,  when  made.     Inspectors  and 

clerks  neglecting  duty   concerning, 
to  forfeit  five  hundred  dollars. 

5.  ^Vho  ineligible  to  office  of  sheriff. 

6.  Sheriff  ineligible,  who  fails  to  settle 

pnblic  dues. 

7.  Who  May  not  serve  as  sheriff. 

8.  His  bonds,  when  to  be  given.     Not 
deemed  sheriff,  iintil  given. 


Section 

10.  Justices  to  meet  on  second  and  third 

days  of  term,  to  take  bonds. 

11.  Sheriff,    how    removed    from    office. 

Duty  then  of  coroner,  and  county- 
court. 

12.  Coroner  to  give  bonds  and  take  oaths 

when  he  acts  as  sheriff. 

13.  What  bonds  sheriff  to  give  ;   condi- 

tions of.    Form  of  bond  for  execu- 
tion of  process,  &c. 

14.  Sureties  of,  liable  for  fines,  &;o. 

15.  May  resign  to  county  court. 

16.  Sheriffs,  &c..  of  Hyde  and  Carteret 
may  serve  process  on  shipboard,  &c. 


9    Shall  renew  bonds,  annually.     Fail-      17.  Sheriffs  to  execute  all  process,  &o 
ure,  to  create  a  vacancy.  Penalty  for  neglect,  $100.     For  false 


return,  $600. 
47. 


558 


[Chap.  105. 


Section 

18.  To  give  receipt  for  process,  which  shall 

be  evidence,  &c. 

19.  To  take  no  obligation  of  any  in  cus- 

tody, but  as  payable  to  himself  as 
sheriff,  &c.     Kor  unlawful  fees. 

20.  Permitting  escape  of  one  in  execution, 

liable  in  action  of  debt. 

21.  Nut  to  farm  his  office. 


Section 

22.  To  have  custody  of  public  jail. 

23.  To  diligently  collect  claims. 

24.  To  furnish  grand-jury  with  a  list  of 

retailers,  &c.     Penalty  for  omission. 

25.  Outgoing  sheriffs  subject  to  a  penalty 

of  $100  for  not  executing  precepts  in 
certain  cases. 


Person  havin 
highest  vote, 
elected. 


Returns  when 
made. 


''d— R*s^°'"  ^'  "^""^  sheriffs  of  the  several  counties  shall  be  elected  by 
109,  s.  1.  the  freemen  of  their  respective  counties,  who   are  entitled  to 

vote  for  members  of  the  house  of  commons. 
Election  when      2.    The  election  of  sheriff  shall  be  held  every  two  years  in 
how'inade.—     each  county,  at  the  time  and  places  specified  for  the  election 
E.  S.c.i09,s.2.  Qf  members  of  the  General  Assembly,  by  the  same  persons, 

and  under  the  same  rules  and  regulations  as  are  prescribed  for 

conducting  that  election,  except  that  the  returns  shall  be  made* 

to  the  clerk  of  the  county  court. 

3.  The  person  having  the  greatest  number  of  votes  shall  be 
declared  elected,  by  the  county  court,  at  its  term  next  after  the 

If  a  tic,  county  elcclioii :  and  if  two  or  more  persons,  having  the  greatest  num- 

ceurt  to  choose.  ,  ri  iiii  iiji  . 

— R.  S.  c.  100,  ber  oi  votes,  shall  have  an  equal  number,  the  county  court,  a 
9-  3.  majority  of  the  justices  being  present,  shall  choose  from  them 

the  person  to  act  as  sheriff;  and  such  court  shall  decide  all 

contested  elections. 

4.  The  return  of  votes  given  for  sheriff  shall  be  made  by  the 
returning  officers,  within  the  time  and  at  the  place  fixed  by 
law  for  making  the  returns  of  elections  for  members  of  assem- 

ci'er'ks''nTiec™'  ^^^ '  ^"'^  *'^^  clerks  shall  attend  on  such  day  and  place,  to 
ing'^dut^Mu-  receive  the  returns.  And  if  any  inspector  shall  wilfully  fail  to 
5«''"'."%*°       make  return  of  the  polls,  or  any  clerk  shall  wilfully  neglect  to 

forfeit  S500. —  ...  ,  '  ,         .     •'  .       ,      , ,  •'.'?,, 

R.  S.  c.  109,  s.  receive  the  returns,  as  herein  required,  the  court  shall  take 
*'T^**^'  '^'  ^^'  efficient  means  to  procure  the  returns ;  and  the  person  so 
offending  shall  forfeit  and  pay  five  hundred  dollars. 

5.  No  person  shall  be  eligible  to  the  office  of  sheriff,  who  is 
not  of  the  age  of  twenty-one  years,  and  has  not  resided  in  the 
county,  in  which  he  is  chosen,  for  one  year  immediately  pre- 
ceding his  election,  and  shall  not  have  possessed  a  freehold  of 
one  hundred  acres  of  land,  in  fee-simple,  for  six  months  next 
before  and  immediately  preceding  the  day  of  his  election; 
which  freehold  he  shall  continue  to  hold  during  his  term  of 
office. 

Sheriffineli-  6.    No  person  shall  be  eligible  to  the  office  of  sheriff  in  any 

&k''pu'blic'^°""^y'.^vh"  theretofore  has  been  sheriff  of  such  county,  and 

dues.— K.  s.  c.  hath  failed  to  settle  with  and  fully  pay  up  to  every  officer,  the 

109,8.7.  taxes  which  were  by  law  due  from  him;  nor  shall  any  court 

permit  such   former  sheriff  to  give  bond  for,  or  reenter  upon 

the  duties  of  the  ofliee,  until  he  has  produced  before  the  court, 

the  receipt  in  full  of  every  officer,  for  such  taxes. 

Who  may  not        7.    No  member  of  the    General    Asscmlily,   or   Council   of 

-R^s^tiof,'  State,  nor  any  practising  attorney,  shall  hold  the  appointment 

8. 17.  '  of  sheriff. 


Who  ineligible 
to  office  of 
sheriff.— R.  S. 
0.  109,  8.  6. 


Chap.  105.]  sheriffs.  559 

8.  The  sheriff  elect  shall  prepare  and  tender  to  the  court  the  His  bonds, 
bonds  required  of  him,   on  or  before  four  o'clock  of  the  after-  given.'" 
noon  of  the  second  day  of  the  term,  at  which  he  is  declared  to 
be  elected,  and  take  the  oaths  of  office  :  but  in  case  a  major- 
ity, or  twelve,  of  the  justices   shall  not  be  present,   then  the 
sheriff  elect  may  execute  the  bonds,  at  or  before  two  o'clock, 
p.  M.  of  the  third  day  of  the  term  aforesaid.     Provided,  hmu-  ^ot  deemed 
ever,  that  when  the  first  Thursday  in  August  shall  happen  dur-  '!'^'^^i|''_^5^''^  ^ 
ing  any  county  court,  the  sheriff' elect  (except  in  the  county  of  log^"^;  s.  ' 
Bladen)  shall  enter  into   bond,  and  take  the  proper  oaths,  on 
the  first  or  second  day  after  the  election.     And  until  the  bonds 
shall  be  received  by  the  court,  no  sheriff  elect  shall  be  deemed 
sheriff',  nor  shall   he,  on   any  pretence,   discharge   any   of  the 
duties  of  the  office  :  and  in  case  the  sheriff' elect  shall  refuse  or 
neglect  to  comply  with  the  provisions  of  this  section,  the  court, 
a  majority  of  the  justices  being  present,  shall  forthwith  elect 
the  sheriff;  who,  on  giving  the  bonds  and  taking  the  oaths 
required    of  sheriffs,    shall    be   sheriff  until  the    next   regular 
election. 

9.  The  sheriff  shall  renew  his  bonds  annually,  and  produce  shall  renew 
the  receipts  from  the  public  treasurer,  county  trustee,  wardens  pa",'j',.e"trclel 
of  the  poor,  and  other  persons,  in  full  of  all  moneys  by  him  ate  vacancy.— 
collected,  or  which  ought  to  have  been  by  him  collected,  for  ^^-^-c  i09,s.9. 
the  use  of  the  State  and  county,  and  for  which  he  shall  have 

become  accountable ;  a  majority,  or  twelve  at  least,  of  the 
justices  being  present  at  the  renewal  thereof;  and  a  failure  of 
the  sheriff  elect  to  renew  his  bonds,  or  to  exhibit  the  aforesaid 
receipts,  shall  create  a  vacancy. 

10.  A  majority,   or  twelve   of  the  justices  it;   the    several  Justices  to 
counties,  are  required  to  meet  at  the  county  court,  which  shall  "^''thil-rdayf 
first  be  held   after  the  election  of  sheriff',  on  the  second  and  of  term  to  take 
third  days  of  the  term,  and  on  other  days  when  necessary,  for  ^™'^^-~'^j;g^- 
the  purpose  of  receiving  from  the  sheriff'  elect  the  bonds  pre- 
scribed by  law. 

11.  If   any   sheriff  shall   be   convicted    in   the   superior    or  sheriff, how re- 
county  courts  of  a  misdemeanor  in  office,  the  court  may  at  JJjj?^^'' ^''""^ 
their  discretion,  as  a  part  of  his  punishment,  remove  him  from 

office  ;  and  on  any  vacancy  in  the  office,  created  by  this  or  D„ty  of  coro- 
anv  other  means,  the  coroner  of  the  county  shall  execute  all  n^'.  "".<i  ™- 

■>  ..         ,      ,    ,       J,  1       -tr  i-i    ii        £      J.  ■  r  ii       court,  in  eiicn 

process  dn-ected  to  the  sheriff,  untff  the  first  session  ot  the  case.— R.  s.  c. 
county  court  next  succeeding  such  vacancy  ;  when  the  court,  lo^i  s-  n- 
a  majority  of  the  justices  being  present,  shall  elect  a  sheriff  to 
supply  the  vacancy  for  the  residue  of  the  term,  who  shall  pos- 
sess the  same  qualifications,  enter  into  the  same  bonds,  and 
be  subject  to  removal,  as  the  sheriff  regularly  elected  ;  and 
should  the  court  fail  to  fill  such  vacancy,  the  coroner  shall  con- 
tinue to  discharge  the  duties  of  sheriff' until  it  shall  be  filled. 

12.    Any  coroner  called  to  discharge  the  duties  of  sheriff,  ^^f ^'/^  f^'^^ 
shall,  before  he  enters  thereon,  in  the  court,  or  at  the  county  oaths,  when 
court  clerk's  office,  five  or  more  justices  being  present,   take  ^jj^'^'^'^.^  ='<="» 
the  same  oaths,  and  enter  into   the  same  bonds,  that  may  be  i:.  s.  c.ioo,  s. 


560  SHERIFFS.  [Chap.  105. 

required  of  sheriffs  :  and  the  first  appointed  coroner  in  each 
county  shall  be  considered  the  coroner  to  discharge  the  duties 
of  the  sheriff,  and  the  proceeding  shall  be  entered  on  record 
by  the  clerk. 
What  bonds  13.    The  sheriff  shall  execute  three  several  bonds,  each  in  the 

andthekloiidi' '''"™  °^  ^'^"  thousand  dollars,  payable  to  the  State  of  North 
tions.  Carolina,   and  conditioned   as   follows  :  one,  conditioned  for 

the  collection,  payment,  and  settlement  of  the  county  and  poor 
taxes,  as  required  by  law ;  one,  for  the  collection,  payment, 
and  settlement  of  the  'public  taxes,  as  required  by  law ;  and  a 
third,  conditioned  as  follows:  — 
Form  of  bond  The  condition  of  the  above  obligation  is  such,  that  whereas 
^7  "i^^ess'^Sc  ^^^  above  bounden  is  elected  and  appointed  sheriff  of 

— R.  S.  c''i09,'  county,  ;  if,  therefore,  he  shall  well  and  truly 

*•  ^^'  execute  and  due  return  make  of  all  process  and  precepts,  to 

him  directed,  and  pay  and  satisfy  all  fees  and  sums  of  money, 
by  him  received  or  levied  by  virtue  of  any  process,  into 
the  proper  office,  into  which  the  same,  by  the  tenor  thereof, 
ought  to  be  paid,  or  to  the  person  or  persons  to  whom  the 
same  shall  be  due,  his,  her,  or  their  executors,  administrators, 
attorneys,  or  agents,  and  in  all  other  things  well,  truly,  and 
faithfully  execute  the  said  office  of  sheriff,  during  his  continu- 
ance therein,  then  the  above  obligation  to  be  void ;  otherwise 
to  remain  in  full  force  and  effect:  which  said  bonds,  every 
county  court,  a  majority,  or  twelve  of  the  justices  being  pres- 
ent, shall  demand  and  take,  and  cause  to  be  acknowledged 
before  them  in  open  court,  and  recorded. 
Sureties  liable  14.  The  sureties  to  a  sheriff's  bond  shall  be  liable  for  all 
g''|"®^'j5^''~  fines  and  amercements,  imposed  on  him,  in  the  same  manner 
15.  '      as  they  are  liable  for  other  defaults  in  his  official  duty. 

May  resign  to        15.    Every   sheriff  may  vacate   his  office   by  resigning  the 
S?«™i09  7ii6.  same  to  the  court  of  pleas  and  quarter-sessions  of  his  county, 
a  majority  of  the  justices  being  present  and  accepting  such 
resignation;  and  thereupon  the  court  may  proceed  to  elect 
another  sheriff. 
Sheriffs,  &c.,  of      16.    The  sheriffs,  constables,  and  other  officers  of  Hyde  and 
Car'teret  mnv     Carteret  counties,  shall   have  power  to  execute  process  upon 
serve  process    any   pcrsou,  on   board  any  vessel  lying  in  the  waters  between 
betwIen^oL-  Ocracock  island   in   Hyde  county,  and  the  island  of   Ports- 
cockandPorts- mouth  in  Carteret  county ;  and  for  every  process  so  executed, 
Tm"'"""^^**'   ^^'^   sheriff  shall  receive"  a  fee  of  three  dollars,  and  the  con- 
stable, for  like  service,  two  dollars. 
Sheriff  to  exe-       17.  Every  sheriff,   by  himself  or  his  lawful  deputies,  shall 
frmri'coSrts!''''  execute  all  writs  and  other  process  to  him  legally  issued  and 
directed,  within  his  county,  or  upon  any  river,  bay,  or  creek 
adjoining  thereto,  or  in  any  other  place  where  he  may  lawfully 
Penalty  for  ne-  execute  the  same,  and  make  due  return  thereof,  under  the  pen- 
gicct,  sioo.       alty  of  forfeiting  one  hundred  dollars  for  each  neglect,  where 
such  process  shall  hv.  delivered  to  him  twenty  days  before  the 
sitting  of  the  court  to  which  the  same  is  returnaiile ;  to  be  paid 
to  the  party  aggrieved  by  order  of  the  court,  upon  motion  and 


Chap.  105.]  sheriffs.  561 

proof  of  such  delivery,  unless  such  sheriff  can  show  sufRcient 

cause  to  the  court,  at  the  next  succeeding  term  after  the  order: 

and,  for  every  false  return,  the  sheriff  shall  forfeit  and  pay  five  F°';/^*^^™Jljj_ 

hundred  dollars,  one  moiety  thereof  to  the  party  grieved,  and  s.  c' 109,  s.  18. 

the  other  to  him  that  will  sue  for  the  same;  and  moreover 

be  further  liable  to  the  action  of  the  party  grieved,  for  dam- 

^^18.  Every  sheriff  shall,  when  requested,  pass  his  receipt  for  To  give  .-e^ceipt 
all  original  and  mesne  process  placed  in  his  hands  for  execu-  ,,.|,-,(.h  sha.\\  be 
tion,  tl  the  party  suing  out  the  same,  his  agent,  or  attorney  ;  evidence,  &e. 
and  such  receipt  shall  be  admissible  as  evidence  of  the  facts 
therein  stated,  against  the  sheriff  and  his  sureties,  in  any  suit, 
between  the  party  taking  the  receipt,  and  the  sheriff  and  his 
sureties.  ,        .  „ 

19.  The  sheriff,  or  his  deputy,  shall  take  no  obligation,  of  or  T°f^ke^^°^obij- 
from  any  person  in  his  custody,  for  or  concerning  any  matter  Custody,  but  as 
or  thing  relating  to  his  office,  otherwise  payable  than  to  him-  P^y^^i^^^eriff""' 
self  as  sheriff,  and  dischargeable  upon  the  prisoner's  appear- ^^Z 
ance  and  rendering  himself  at  the  day  and  place  required  in 
the  writ,  (whereupon   he  was  or  shall  be  taken  or  arrested,) 
and  his  sureties  discharging  themselves  therefrom  as  special 
bail  of  such  prisoner,  or  such  person  keeping  within  the  limits 
and  rules  of  any  prison  ;  and  every  other  obligation  taken  by 
any  sheriff  in  any  other  manner  or  form,  by  color  of  his  office, 
shall  be  void,  except,  in  any  special  case,  any  other  obligation 
shall  be,  by  law,  particularly  and  expressly  directed :   And  no  Kor  ""^"^gf"^ 
sheriff  shall  demand,  exact,  take,  or  receive  any  greater  fee  or  ^^^'^^  ^g,  ' 
reward  whatsoever,  nor  shall  have  any  allowance,  reward,  or 
satisfaction  from  the  public,  for  any  service  by  him  done,  other 
than  such  sum  as  the  county  court  shall  allow  for  ex  officio 
services,  and  the  allowance  given  and  provided  by  law. 

20.  When  any   sheriff  shall  take,  or  receive   and  have  in  Permittmges- 
keeping,  the  body  of  any  debtor  in  execution,  or  upon  attach-  execution.Ma- 
ment  for  not  performing  a  decree  in  equity  for  the  payment  of  We^j"j>eto  of 
any  sum   of  money,  and  shall  wilfully  or   negligently  suffer  jog3_  ^o. 
such  debtor  to  escape,  the  person  suing  out  such  execution  or 
attachment,  his  executors,  or  administrators,  shall  have  and 
maintain  an  action  of  debt  against  such  sheriff,  and  in  case  of 
his  death,  against  his  executors  or  administrators,  for  the  re- 
covery of  all  such  sums  of  money,  as  are  mentioned  in  the 
said  execution  or  attachment,  and  damages  for  detaining  the 
same. 

21.  No  sheriff  shall  let  to  farm  in  any  manner,  his  county,  J^j^'^^^jf^g'';." 
or  any  part  of  it,  under  pain  of  forfeiting  five  hundred  dollars  ;  "J^%  .21V 
one  half  to  the  use  of  the  county,  and  the  other  half  to  the 

person  suing  for  the  same. 

22.  The  sheriff  shall  have  the  care  and  custody  of  the  pub-  To  ha^•e^custo- 
lic  jail  in   his  county  ;   and  shall  be,  or    appoint  the   keeper 

thereof. 

23.  When  a  claim,  within  the  jurisdiction  of  a  justice  of  the  J^'^i^'i'^'g^;'.'^; 
peace,  shall  be  placed  in  the  hands  of  any  sheriff,  or  his  dep-  _k.'s.  c.  109, 


562  SHERIFFS.  [Chap.  105. 

uty,  for  collection,  he  shall  diligently  endeavor  to  collect  the 
same. 
To  furnish  24.  The  sheriff' shall  lay  before  the  grand-jury  of  his  county, 

^Uhanlfof    ^t  each  court,  as  soon  as  the  grand-jury  shall  be  assembled,  a 
retailers  of       list  of  all  persons  who  may  have  obtained  license   to  retail 
quors"""^  ''     spirituous  liquors  by  the  small  measure,  within  two  years  pre- 
Penaltyfor       vious  to  Said  court ;  which  list,  the  foreman  of  the  grand-jury, 
s'"c!^34°sT82.   ^t  the  close  of  its  session,  shall  deliver  to  the  clerk  far  safe- 
— 1860,  c.  185.  keeping;  and  any  sheriff  failing  to  perform  the  duty  aforesaid, 
shall  forfeit  and  pay  to  tlie  State  ten  dollars,  to  be  recovered 
by  the  prosecuting  officer,  in  the  same  manner  as  the  penalties 
against  sheriff's  for  not  returning  process. 
i?F"sSj^ct^toT      ^^-  ^"y  sheriff",  who  shall  have  received  a  precept,  and  shall 
penalty  of        go  out  of  ofHcc  before  the  return  day  thereof,  without  having 
execiiti'ng"pre-  f-'^ccuted  the  Same,  shaU  forfeit  and  pay  to  the  party  at  whose 
cepts  iu certain  instance  it  was  issued,  the  sum  of  one  hundred  dollars,  if  such 
cases.  precept  shall  have  remained  in  his  hands  for  such  length  of 

time  wherein  it  might  have  been  well  executed  by  him  ;  unless 
the  same  shall  have  been  thereafter  executed  by  the  successor 
of  such  sheriff",  and  returned  at  the  day  and  place  commanded 
therein  ;  or  unless  it  shall  have  been  delivered  over  to  the  suc- 
ceeding sheriff"  time  enough  to  have  allowed  of  its  being  exe- 
cuted by  him  :  And  the  penalty  aforesaid  shall  be  recoverable 
by  scire  facias,  against  such  outgoing  sheriff  and  his  sureties. 


Sect.  6.   Reappointment  of  defaulter,  9  Ire.  307. 

Sect.  14.  What  tax  bond  covers,  S  Ire.  104)  school  tax,  Bns.  275 ;  must  be  legally  laid, 
6  Ire.  227,  7  lb.  68;  if  sheriff  collects  without  list,  8  Ire.  104;  who  to  sue,  9  Ire.  498;  on 
tchich  bond,  3  Hawks,  42.  Form  of  bond,  3  Hawks,  285,  1  Dev.  52,  lb.  65.  lI'AiVA  sheriff 
to  collect  taxes,  3  Dev.  365.  What  third  bond  covers,  8  Ire.  415.  lb.  513,  11  lb.  141,  3  D. 
&  B.  68,  lb.  73,  1  Ire.  155,  lb.  453,  2  lb.  144,  2  Hawks,  5,  lb.  366, 1  Dev.  214.  Pka(Unij, 
in  suit  on  bond,  6  Ire.  347,  4  D.  &  B.  461.  1  Dev.  157,  7  Ire.  296. 

Sect.  17.  Who  to  execute  process :  old  or  new  sheriff,  4  D.  &  B.  489;  when,  3  Hawks, 
548;  sheriff  a  party,  13  Ire.  25.  Who  amerced,  1  Mur.  255,  7  Ire.  296,  3  Ire.  407.  Whtn, 
8  Ire.  240.  NegVu/ence,  10  Ire.  200,  lb.  242,  1  D.  &  B.  243,  lb.  252,  13  Ire.  444.  Form 
of  return,  2  Car.  L.  R.  440,  N.  C.  T.  R.  79,  1  Car.  L.  R.  500,  Bus.  377, 11  Ire.  627,  12  lb. 
108.  False  return,  7  Ire.  317,  lb.  333,  lb.  412,  8  lb.  312.  Sureties boundbu  return,  1  Dev. 
153.  What  execution  protects  sheriff;  4  D.  &  B.  160.  Power  of  sheriff,  2  llawks,  246;  of 
ex-sheriff,  2  D.  &  B.  87.  Deputy-sheriff,  13  Iro.  IS,  5  lb.  36,  1  Dev.  218,  3  lb.  23;  what 
acts  of,  sheriff  liable  for,  7  Ire.  333,  11  it).  363,  3  lb.  649,  2  D.  &  B.  204;  demand  on  dep- 
uty sufficient,  4  Ire.  226,  2  Dev.  638. 

Sect.  19.    Indemnity  to  sheriff",  2  Dev.  136,  3  Ire.  181. 

Sect.  20.  Escape,  10  Ire.  ifv,  9  lb.  261,  6  lb.  702,  2  .Tones,  104,  8  Hawks,  211, 1  Mur. 
445,  1  Hawks,  425,  6  Ire.  119,  8  lb.  147,  lb.  201.     Jieception,  10  Ire.  486. 

Sect.  22.  Liability  of  jailer  to  sheriff,  11  Ire.  652. 

Sect.  23.  Sheriffbound  tike  constable,  7  Ire.  879. 


Chap.  107.]         slaves  and  free  negroes. 


CHAPTER   106. 

SLANDER  OF  WOMEN. 

What  words  spoken  of  women  sliall  be  actionable. 

WnEREAS,  doubts  have  arisen  whether  actions  of  slander 
can  be  maintained  against  persons  who  may  attempt,  in  a 
wanton  and  malicious  manner,  to  destroy  the  reputation  of 
innocent  and  unprotected  women,  whose  very  existence  in 
society  depends  upon  the  unsullied  purity  of  their  character : — 

It  is  therefore  enacted,  that  any  words  written  or  spoken  ^J^',^"/'^' 
of  a  woman,  which  may  amount  to  a  charge  of  incontinency,  women  shall 
shall  be  deemed  and  held  to  be  actionable.  ^K'sTm 


Sect  1.  12  Ire.  348;  1  Dev.  210. 


CHAPTER    107. 


SLAVES  AND  FREE  NEGROES. 


Section 

1.  Slaves,  unlawfully  imported,  sold,  &c. 

2.  Sheriff's  duty  in  selling,  &c. 

3.  His  duty,  when  they  abscond. 

4.  Persons  informing,  &o.,  to  be  reward- 

ed.   Sheriff  to  give  bills  of  sale. 

5.  His  commissions,  &o.,  for  sales. 

6.  Issue  of  such  negroes,  included,  &c. 

7.  Penalty  for  bringing  slaves  from  lib- 

erating States. 

—  8.  Reward  for  apprehending  runaways. 
When  taken  in  certain  swamps.  Re- 
ward and  jail  fees  retained  by  jailer. 

•-  9.  Runaways  delivered  to  owner,  or 
brought  before  a  justice.  Proceed- 
ings. If  committed,  sheriff  to  ad- 
vertise him. 

10.  Description  of  slaves  worked  in  Great 

Dismal  and  other  swamps,  to  be 
taken  and  recorded  by  clerk.  Cer- 
tified copy  to  be  kept  by  slave  while 
at  work.  Penalty  on  owner  for  neg- 
lect. 

11.  Free  negroes  to  procure  like  certifi- 

cates.   Penalty  for  neglect. 
'     12.  Slaves    without  them    may  be  pun- 
ished.    Reward  of  $25  for   taking 
them  up.    May  be  treated  as  runa- 
ways. 


Section 

13.  Certificated  slaves,  &c.,  not  to  work 
with   uncertificated.     Misdemeanor. 

14.  White  persons  working  with  uncer- 
tificated slaves,  &c.,  guilty  of  mis- 
demeanor. 

15.  Forgery  of  certificate  punishable 
with  pillory,  &€. 

16.  Not  required  as  to  certain  swnmps, 
or  swamp  lands;  or  temporary  cut- 
ting of  timber. 

,  17.  Penalty  on  sheriff,  &o.,  employing, 
wrongly  detaining,  or  suffering  run- 
away to  escape. 

■'  18.  Expenses  of  carrying  runaways,  how 
paid. 

'  19.  Runaways  sold  by  sheriff  in  certain 
cases,  by  order  of  court. 

20.  His  commissions  for  sale. 

21.  Shall  convey.  Proceeds  how  applied. 

22.  Owner  may  reclaim  proceeds. 

^   23.  Expenses  of  runaway,  in  certain  ca- 
ses, paid  by  county. 
24.  County  may  recover  back. 
.-    25.  Runaways  may  be  outlawed,  M-hen. 

26.  Slaves  not  to  go  armed,  or  hunt  with 

<■ 

27.  Not  pi'operly  fed,  owners  liable  for 
their  steaUng. 


564 


SLAVES   AND   FREE   NEGROES.  [ChAP.  107. 


Skction 

28.  Not  allowed  to  hire  their  lime.    Pen- 

alty on  master.    Slave  indictable. 
Punishment. 

29.  Not  to  go  at  large  as  freemen. 

30.  Permitting  slaves   of  others   to  meet 

for  dancing,  unless,  &c.,  a  misde- 
meanor. 

31.  Inferior  offences  of  slaves,  what. 

32.  To  be  cognizable  by  one  justice. 

33.  Appeals  from  justice    allowed. 

34.  Felonies,  &c.,  of,   tried    in   superior 

court.     Slaves  tried  as  freemen. 
^  35.  Conspiracies  of,  how  punishable. 
•-  36.  Insurrections,  how  punishable. 
-  37.  Free  persons  conspiring  with  slaves, 

how  punishable. 

38.  What  evidence  received  in  trials  of 

such  cases,  &c. 

39.  Slaves  convicted  of,  to  suffer  death, 

or  be  transported. 

40.  Returning  voluntarily-    to    be  execu- 

ted.    If  brought  back,  forfeited. 

41.  In  case  of  insurrection,  &c.,  a  com- 

mission of  oyer  and  terminer  may 
issue. 

42.  Prosecuting  officer  paid. 

43.  Court  may  continue  case  to  regular 

term, 

44.  Attempting  rape  on  white  female. 

45.  Emancipation  of  slaves.     Owner  to 

give  bond  for  freed  slaves  to  leave 
the  State,  &c. 

46.  How  freed,  when  directed  by  will. 

47.  When  court  may  direct  to  what  place 

they  may  be  carried. 

48.  When  issue  of  slaves  to  be  emanci- 

pated with  the  mother. 

49.  Slaves   over  fifty,  may  be  freed  for 

meritorious  services.    Master  to  give 
bond,  lite. 

60.  Emancipated  for  other  cause,  to  leave 

the   State   in  ninety  days.     Or  be 
sold  into  slavery. 

61.  And  tlie  bond  put  in  suit. 

52.  Freed  slaves  violating  this  chapter,  to 

be  presented. 

53.  None  to  be  freed  contrary  to  law. 

54.  Free  negi-o  not  to  migrate  into   the 

State.  Misdemeanor; — fine  §500. 
65.  Penalty  for  introducing  free  negroes. 
6G.  Free  negroes   immigrating,   or    their 


Section 

issue,   not    to    become   inhabitants. 
Misdemeanor.    To  be  removed. 

57.  Migrating,  and  absent  ninety  days  not 

to  return,  unless  sickness,  &c. 

58.  Grand-jury  to  be  charged  to  present 

those  coming  into  the  State. 

59.  Free  negroes  forbid  to  preach,  &c. 

60.  Wlien  vagrants,  how  dealt  with.   Hires 

of,  paid  to  county  trustee. 

61.  Free  negroes  not  to  marry  with  slaves. 

62.  Nor  gamble  or  play  with  them  at  cer- 

tain games. 

63.  Nor  suffer  slaves  to  gamble  in  their 

houses,  &c. 

64.  Nor  entertain    them    Sunday,  or  at 

night. 

65.  Nor  hawk  and  peddle  without  license. 

66.  Nor  wear  or  keep  guns,  bowie-knives, 

&c.,  without  license. 

67.  Nor  sell  spirituous  liquors. 

68.  Slaves  convicted  of  felonies  not  capi- 

tal, how  punished. 

69.  Owners  to  have  ten  days  notice  of 

trial.     Liable  for  costs. 

70.  When  owner  cannot  be  notified,  coun- 

sel appointed.     Who  shall  have  fees, 
&c. 
,71.  Evidence  of  slaves    and    pei-sons  of 
color,  against  whom  allowed. 

72.  Slaves,  &c,,  when  witnesses,  to  be 

warned.  Sec. 

73.  Guilty  of  perjury,  punished  as  free- 

men. 
'  74.  Free  negroes,  in  certain  cases,  whipt 
insttad  of  imprisoned. 

75.  May  be  hired  out  for  fines.    Hirer's 

authority. 

76.  Charged  with  bastard,  may  be  hired 

out  to  support  the  child. 

77.  If  hired  as  long  as  five  years,  fine, 

&c.,  discharged.  Absconding,  to 
serve  double  time.  Hirer  to  enter 
into  recognizance  to  feed,  clothe,  &c. 
Not  to  be  removed  out  of  the  coun- 
ty. On  breach  of  recognizance,  dis- 
cliarge  from  service,  &c. 

78.  Slaves  not  to  be  carried  on  ships,  rail- 

roads, coaches,  &c.  Unless  permit- 
ted by,  or  travelling  with  their 
masters,  &c. 

79.  Who  shall  be  deemed  free  negroes. 


to  act  of  con- -^  J"™  tliib  btate  Irom  any  foreign  port  or  place,  for  a  slave,  or 
roftatf-  *°  ^'^.^''^  *"  r'^'r  r  ^'^^^r,  since  the  first  day  of  January, 
R.S.c.iii,s.i.  o"e  thousand  eight   hundred   and  eight,  contrary  to  the  pro- 
visions of  an  act  of  Congress  entitled,  "  An  Act  to  prohibit  the 
importation  of  slaves  into  any  port  or  place  within  the  juris- 


Chap.  107.]       slaves  and  free  negroes.  565 

diction  of  the  United  States,  from  and  after  tiie  first  day  of 
January,  in  the  year  of  our  Lord,  one  tiioi;sand  eight  liun- 
dred  and  eight,"  approved  the  second  day  of  March,  one 
thousand  eight  hundred  and  seven,  (except  as  hereinafter  pro- 
vided,) shall  be  sold  for  the  use  of  the  State. 

2.  The  sheriff  of  each  county  in  this  State  is  hereby  author-  Sheriff's  duty 
ized  and  required  to  seize  and  take  into  his  possession,  every  ^'^iJ^^;^;'^,!^"! 
such  negro  or  person  of  color,  who  has  been  or  shall  be  im-  c.  luTs.  2. 
ported  as  aforesaid,  and  shall  be  found  in  the  county  of  which 

he  is  sheriff;  and  such  negro  or  person  of  color,  so  taken,  to 
sell  and  dispose  of  at  public  sale,  at  the  court  house  door, 
(giving  previous  notice  of  twenty  days,  of  the  time  of  sale,  by 
advertisement  in  the  nearest  newspaper  published  in  the 
State,)  to  the  highest  bidder,  at  a  credit  of  six  months,  the 
purchaser  entering  into  bond  with  security,  to  be  approved 
by  the  sheriff,  for  the  payment  of  the  price ;  which,  when 
received  by  the  slieriff,  he  shall  account  for  and  pay  to  the 
public  treasurer  after  deducting  from  the  gross  amount  the 
several  suras  hereinafter  authorized  to  be  retained,  at  the  same 
time,  and  under  the  same  regulations  and  penalties,  as  are  pre- 
scribed for  paying  the  public  taxes. 

3.  Where  any  such  negro  shall  abscond,  or  so  conceal  him-  His  duty, when 
self  that  he  cannot  be  taken,  the  sheriff  may  offer  a  reward,  not  [111  S.  c^nij 
exceeding  one  fifth  part  of  his  value,  to  any  person  who  will  s-  3.        , 
apprehend  and  deliver  him  to  the  sheriff;  or  the  sheriff  may,  in 

his  discretion,  advertise  and  sell  him  as  directed  in  the  pre- 
ceding section,  without  offering  a  reward,  although  he  may 
not  be  in  his  possession  at  the  time  of  sale. 

4.  Any  person  who  shall  discover  any  such  negro,  and  give  Persons  giving 
such  notice  to  the  sheriff  that  he  shall,  in  consequence  thereof,  slaves  to  be  re- 
obtain  the  negro,  shall  be  entitled  to  one  fifth  part  of  the  sum  warded. 

for  which  the  negro  shall  be  sold,  to  be  retained,  that  and  the 

reward,  out  of  the   proceeds   of  sale,  and  paid  by  the  sheriff; 

and  the  sheriff,  or  his  successor,  shall  execute  and  deliver  to  Sheriff  to  give 

the  purchaser,  his  execvitors,  administrators,  or  assigns,  a  bill  p,  s.'c.^iiiT. 

of  sale  for  soch  negro:  and  the  title  so  acquired  shall  not  be  4,5. 

affected  by  the  want  of  advertisement,  or  other  irregularity,  in 

the  sale,  or  proceedings  on  the  part  of  the  sheriff. 

5.  The  sheriff  may  retain  out  of  the  price,  besides  the  reason-  His  commis- 
able  charges  for  keeping  such   negro  till  the  day  of  sale,  and  sales.'— B.'s?"^ 
advertising,  the  further  sum  of  six   per  centum  on  the  gross  c.  in,  s.  6. 
proceeds  of  sale,  in  full  for  his  services. 

6.  The  foresfoing  provisions  of  this  chapter  shall  extend  and  Issue  of  sach 

1  (.11  I-  (.  uegroes,  m- 

apply  to  every  negro  and  person  ot  color,  and  to  the  issue  oi  eluded.— R.  S. 
every  negro  aiid  person  of  color,  imported  as  aforesaid.  "•  ^^^'  ^'  ^" 

7.  Every  person  who  shall  introduce   into   the    State   any  J'^'^'.'y '°,'' 

ixT'iiT^  I'll  11  bringmg  slaves 

slave,  from  any  of  the  United  States  which  have  passed  laws  from  liberating 
for  the  liberation  of  slaves,  shall,  on  complaint  thereof  before  ^^j'^Y  s"9  ^' 
any  justice  of  the  peace,  be  compelled  by  such  justice,  to  en- 
ter into  bond  with  sufficient  security,  in  the  sum  of  one  thou- 
sand dollars  for  each  slave,  for  the  removing  of  such  slave  to 
48 


5G6  SLAVES  AND    FREE  NEGROES.         [ChAP.    107. 

the  State  whence  he  was  brought,  within  three  months  there- 
after, under    the    penalty    of  five    hundred    dollars  for  every 
month's  delay ;  one  half  to  the  use  of  the  State,  and  the  other 
half  to  the  use  of  the  prosecutor. 
Kewara  for  ap-      8.    All  persons  who  may  apprehend  and  confine  in  jail,  or  de- 
runaways."       li^^""  t"  ^he  owner,  any  runaway  slave,  for  whom  a  greater  re- 
ward shall  not  have  been  offered,  shall  be  entitled  to  recover  and 
receive  from  the  owner  a  reward  of  five  dollars,  when  the  owner 
resides  in  the  county  in  which  the  slave  may  be  apprehended, 
and  ten  dollars,  if  he  reside  beyond  the  limits  of  such  county ; 
men  taken     and  if  the   runaway  shall  have  been  apprehended  in  any  part 
swamlTs."         of  the  swamps  mentioned  in  section  ten  of  this  chapter,  not 
lying  in  Beaufort  or  Hyde   counties,  the   apprehender  shall, 
besides  any  reward  offered,  be  entitled  to  twenty-live  dollars 
Reward  and     f,.o,^   ^^g   owner;  and  when  the  runaway  slave   thus   appre- 
retai'nedTy      hended  shall  be  lodged  in  jail,  the  jailer  shall  tax  the  reward 
jaiiei-.— R.  S.^  j-^g^gj^  allowed  on   each   slave,  against  the  owner,  and  collect 
1846,  c. 46, 6. 7.  the  same  with  his  prison  fees,  and  all  other  charges  allowed 

by  this  chapter. 
Runaways  9.    Any  slave,  taken  up  as  a  runaway,  may  be  delivered  im- 

deiivcred  to  mediately  to  the  owner,  and  if  not  so  delivered,  shall  be 
brought  before  brought  before  a  justice  of  the  peace  of  the  county  wherein  he 
a  justice.  jg  apprehended;  and  if  the  owner  be  known,  and  a  resident  of 

^  that  county,  the  justice,  by  warrant,  shall  commit  the  runaway 

to  some  constable  of  the  county,  to  be  by  him  conveyed  to  his 
home,  and  the  constable  shall  give  a  receipt  for  the  runaway  ; 
Proceedings,     b^t  if  the  owner  be  unknown,  or  reside  out  of  the  county,  the 
justice  shall,  by  warrant,  commit  the  runaway  to  the  jail  of  his 
If  committed,    county ;  and  the  sherift"  shall  forthwith  cause  notice  of  such 
vertiso  himi-   commitment  to  be  set  up  at  the  court  house  door  of  the  county, 
B.  S.  0.111,  s.  and  there   continued  during  two   months,  in  which   notice,  a 
11, 12,  lo.         ^^ji  description  of  the  runaway,  and  his  clothing,  shall  be  par- 
ticularly set  forth  ;   and  whenever  the  owner  is  supposed  to  be 
a  resident  of  another  State,  or  to  reside  as  many  as  fifty  miles 
from  the  jail  where  the  runaway  is   confined,  the   sherifi'  or 
jailer  shall  also  cause  said  notice  to  be  immediately  published 
in  some  newspaper  published  at  the  seat  of  government,  for 
six  months,  unless  the   runaway  is   sooner  delivered  to  the 
owner. 
Description  of       10.    Every  person  being  the  owner,  or  having  the  use,  care, 
slaves  employ-  q^  management  of  slaves,  and  employing  them  in  the  Cjreat 

od  in  Great  Di5- _-.  ,    f?,  ■       ,,  T  ■    i     r        i     i  t  ) 

mai  and  other  Dismal  Svvamp,  or  m  the  swamp  which  lies  beuveen  Liees 
swamps,  to  bo  niill  in  the  county  of  Washington,  and  Pamlico  river  in  the 

taken  and  re-  ,         .  _  .  .' ,  ■       ,,      "  i  •    i     i •        i     j.  t 

corded  by  tiio  county  of  Bcaufort,  or  in  the  swamp  which  lies  between  Ju- 
ciork.  niper  creek,  and  the  lands  of  Charles  Pettigrew,  in  the  county 

of  Tyrrell,  shall,  before  said  slaves  are  put  to  work  in  any  of 
the  places  aforesaid,  bring  each  one  before  the  clerk  of  the 
court  of  pleas  and  quarter-sessions  of  the  county  in  whicli  he 
is  to  be  employed,  wiio  siiall,  upon  his  personal  examination 
take  an  exact  description  of  the  slave,  specifying  the  name 
and  residence  of  the  person  intending  so  to  employ  the  slave, 


Chap.  107.]       slaves  and  free  negroes. 


567 


the  height,  complexion,  and   every  pecnliar  mark  of  descrip- 
tion, by  which  the  slave  may  be  most  eflectnally  known  and 
identified;  and  such  written  description  shall  be  entered  by 
the  clerk   on   a  book    kept    for   that    purpose,    and    he    shall 
forthwith  make  out  and  deliver  to  the  owner,  or  to  the  person 
having  the  use,  care,  or  management  of  the   slave,  a  fair  and 
true  copy  thereof,  without  any  interlineation  or  erasure,  certi-  deiiverou?^ 
fied  under  his  hand  and  the  seal  of  the  court :  and   the  owner  ownev,  an,i 
or  person  aforesaid,  shall,  before  putting  the  slave  to  work  in  ^;,1Rf^''.fj';^;;'.^_ 
any  of  said  swamps,  deliver  such  copy  to  him,  to  be  kept  about  Penalty  on 
his  person.     And  if  any  owner,  or  person  having  the  use,  care,  Jl,""— is«,T 
or  management  of  any  slave,  shall  employ  him  in  any  of  said  46;  1848,  c.'g«; 
swamps,  without  procuring  and  delivering  to  the   slave  such  ■'*"'°'  °- 
copy  as  aforesaid,  or  shall  otherwise  offend  against  the  provis- 
ions of  this  section,  the  person  so  offending,  shall  be  deemed 
guilty  of  a  misdemeanor. 

11.  Free  negroes  working  in  any  of  said  swamps,  shall  pro-  Freere^esto 
cure  from  the  clerks  of  the  proper  counties,  a  similar  descrip-  certificates.* 
tion   of  themselves,  certified  as  above  directed,   and  keep  it  Penalty  for 
ready  at  all  times  when  so  engaged  to  be  exhibited.     And  if  c^le^fisis,  c' 
any  free   person   of  color  shall  wilfully  work   in  any  of  said  93;  isso,  c. 
swamps  without   such   copy,  he  shall  be  deemed  guilty  of  a 
misdemeanor;  and,  on  conviction,  maybe  punished  at  the  dis- 
cretion of  the  court,  by  fine,  whipping,  and  imprisonment,  or 

any  of  them. 

12.  If  any  slave  shall  wilfully  work  in  any  of  said  swamps.  Slaves  without 

.  ,  ,-'  .  ..-',.  !_•         J.  r  it,-        u  them  may  be 

Without  such  copy  as  is  prescribed  in  section  ten  ot  this  chap-  punished. 
ter,  he  may  be  arrested   by  any  person  ;  and,  on  being  tried  ^<=™''^^  o*^®*^ 
and  convicted  before  a  justice  of  the  peace,  shall  receive  thirty-  ™  "  '"S^P* 
nine  lashes  on  his  bare  back;  and  the  person  arresting  such  Maybe  treated 

.1.  .11,1  1  lie  j_t  as  ninawaTS- — 

slave,  shall  be  entitled  to  demand  and  have  from  the  owner  or  ^g.^g,  o.  46. 
person  having  the  use,  care,  or  management  of  the  slave, 
twenty-five  dollars ;  or  may  proceed  against  the  slave,  as  a 
runaway,  according  to  the  law  directing  the  disposition  of  run- 
away slaves,  and  cause  him  to  be  kept  in  custody,  until  the 
said  sum  of  twenty-five  dollars,  and  all  other  charges  shall 
have  been  paid. 

13.  If  any  slave   or  free  person  of  color,  having  obtained  f,^^e^''&^.'^not 
such  certified  copy,  shall,  in  any  of  said  swamps,  consort  with,  towork  with 
or  work,  or  be  employed  in  company  with  any  runaway  slave,  jfi^jgJ^f/^nOT; 
or  any  slave  or  free  negro  not  having  such  copy,  the   slave  or_ie46,  e.46. 
free  person  so   offending,  shall  be  deemed  guilty  of  a  misde- 
meanor. 

14.  If  any  white  person  shall,  in  any  of  said  swamps,  con-  White  persons 

,  •'      .   ,  '  ,  '  ■'      ,  I     ii  •  working  with 

sort  or  work  with,  or  employ,  or  engage  to  work  therein,  any  i,„certiaciitsa 
runaway  slave,  or  any  slave  who  shall  not  have  such  certified  slaves,  &c., 
copy  as  aforesaid,  he  shall  forfeit  the  sum  of  one  hundred  dol-  §",„•,■.— isis, 
lars,  to   any  person  who  will   sue  for  the  same,  and  shall  be  c.  4S. 
deemed  guilty  of  a  misdemeanor ;  and  on  conviction,  may  be 
imprisoned  not  more  than  six  months  ;  or  fined  at  the   discre- 
tion of  the  court. 


568  SLAVES   AND   FREE   NEGROES.  [ChAP.  107. 

«(ica?7puuisT      ^'^'    ^^  ^"y  person  shall   falsely  make,  forge,  or  counterfeit, 
able  with  pii-    O""  cause  the  same  to  be  done,  or  willingly  aid  or  assist  therein, 
isIs'^'iT       ^"^  writing,  purporting  to  be  the  original,  or  a  copy  of  a  de- 
'   ■     ■       scription   of  any  slave  or  free   person   of  color,  employed  or 
about  to  be  employed  in  any  of  said  swamps,  with  intent  to 
evade  any  of  the  provisions  of  this   chapter,  which  relate  to 
such  persons,  the  person  so  oft'ending  shall  be  guilty  of  a  mis- 
demeanor, and  on  conviction,  shall  be  punished  by  standing  in 
the   pillory  for  one   hour,  by  whipping,  imprisonment  for  six 
months,  and  fme  ;  by  all  or  any  of  them,  at  the  discretion  of 
the  court. 
Certificate  IG.    None  of  the  provisions  of  this  chapter  respecting  work- 

S'toTrta'n     ^"S  '"  swamps,  shall  be  construed  to  extend  to  any  swamp  in 
swamps;  or  re-  the  county  of  Currituck,  lying  below  Indian  Town  creek  bridge  ; 
landTo'l'trr''  "°^"  ^°  ^"y  P^*''^  °^  ^'^^  swamps  herein  referred  to,  which  lie  in 
poniry  cutting  Bcaufort  Or  Hyde  counties;  nor  to  any  swamp  lands  which 
imbTc.TsT      ^'^^'^  ^^^'■'^  ^^^"  reclaimed,  and  may  be  used  for  agricultural 
isso^c.  187.      purposes;  nor  to  any  slave  employed  in  cultivating  the  same; 
nor  to  any  slave,  his  owner,  employer,  or  manager  that  may 
be  temporarily  engaged  in  said  swamp,  in  cutting  timber  for 
ordinary  plantation  purposes. 
fhp"rm-^fec  ^'^'    ^^  ^"^  sheriff,  jailer,  or  constable,  shall  set  to  work,  em- 

empioyiiigi'      P^oy,  OT  let  out  to  hire,  any  runaway  slave  committed  to  his 
tainhfs^otsuf-  '^"'*tody,or  shall  detain  such  runaway  longer  than  by  thischap- 
feringruna-      ter  is  directed,  he  shall  forfeit  the  jail  fees  ;  and  if  any  sheriff, 
^"^^°f°i'\P<'- jailer,  or  constable,  to  whom  any  runaway  is  committed  by 
8. 13.  ■   ■      '  virtue  of  this  chapter,  shall  negligently  or  wilfully  suffer  such 
runaway  to  escape,  he  shall  be  liable  on   his  official  bond,  to 
the  action  of  the  party  grieved,  for  the  recovery  of  his  dam- 
ages. 

^^,^^'^unl''""  ^^-  "^'^"^  expense  of  carrying  a  runaway  to  jail,  incurred  by 
ways,  iiow  any  officer,  shall  be  paid  by  the  county,  and  repaid  to  the 
iii'^rf4  ^'  "'  ''^""^y  ^y  ^he  owner;  and  the  same  shall  be  a  lien  on  the  run- 

'  ■     ■         away  in  behalf  of  the  county. 
Runaways  sold      19-    Whenever  any  slave  shall  be  taken  up  as  a  runaway,  and 
sl^rby  order     confined  in  jail  for  twelve  months,  and  his  apprehension  and 
of  court.— R.    confinement  have  been  advertised  in  a  newspaper  as  aforesaid, 
S.  c.  Ill,  6. 16.  for  six  nionths,  and  the  owner  does  not  apply  to  prove  property 
in  that  time,  then  the  court  of  pleas  and  quarter-sessions  of 
the  county  in  which  the  runaway  is  confined,  shall   command 
the  sheriff  of  the  county  to  expose  the  slave  to  public  sale,  for 
cash,  giving  two  months'  notice  in  some   newspaper  published 
in  this  State,  at  the  court  house  door,  and  at  two  other  public 
places  in  the  county,  of  the  time  and  place  of  sale,  and  of  the 
circumstances  under  which  the  slave  is  to  be  sold.     • 
foJTa'ui-R's       ^^'    "^''^  sheriff  shall  be  allowed  two  and  a  half  per  centum 
c.ni."'      ■   ■  on  the  amount  of  sales  made  under  the  preceding  section. 

ye'"'"procecd«  ^^'  '^''^  '^'"  "^  '^^''^  "^  *''*^  sheriff  shall  vest  in  the  purchaser 
how  applied.- an  absolute  right  to  the  slave;  and  the  sheriff  shall  pay  over 
Ej  s.  c.  ill,  6.  the  residue  of  the  amount  of  sales,  after  deducting  his  com- 


Chap.  107.]        slaves  and  free  negroes.  569 

missions  and  prison  charges,  to  the  county  trustee  for  the  use 
of  the  county. 

22.  Upon  the  petition   of  the  owner  of  such  slave,  to^  the  ^i;™,^^;;;^^;^^; 
court  of  the  county  Avhere  the  proceeds  of  sale  are  deposited,  o,,  petition.— 
and  upon  satisfactory  proof  of  the  right  of  property  of  the  pe-  «■  s.  c.  ill,  s. 
titioner,  the  court  shall  direct  payment  to  him  of  the  sum  paid 

into  the  county  treasury,  taking  bond  and  security  from  the 
petitioner,  when  they  think  proper,  payable  to  the  State  of 
North  Carolina,  to  refund  the  money  with  interest  to  the  true 
owner  of  the  slave,  should  it  thereafter  appear  that  the  peti- 
tioner was  not  such. 

23.  If  any  runaway  slave  confined  in  jail,  (his  owner  being  ExpenFes  of 
unknown,)  should  die,  or,  by  the  regular  process   of  law  be  re-  certain  cls« 
moved   from  jail  before  a  sale  is   made,  according  to  the  pro- pnidb^y  county, 
visions  of  this  chapter,  the  court  of  pleas  and  quarter-sessions  ^  ,0.  ' "'      ' 
of  the   county  where  the  slave  was  confined,  shall  direct  the 
expenses  of  his  imprisonment  to   be   paid  out  of  the   county 

funds.  Provided,  that  the  sheriff  or  jailer  shows  to  the  court, 
that  he  has  complied  with  the  directions  requiring  the  adver- 
tisement of  runaways. 

24.  Whenever  such  expenses   shall  have  been  paid  by  the  ^°^^}y  ^^^ 
county,  the  county  trustee  by  warrant  shall   recover  back  the  — r.  s.  e.  iii, 
same  "of  the  owner,  or  his  representatives,  when   he   shall  be-  ^-  ^°- 
come  known,  for  the  use  of  the  county. 

25.  Whereas,  many  times  slaves  do  run  away  and  lie  out,  ^"^^'^^f^^'^n 
hid  and  lurking  in  swamps,  woods,  and  other  obscure  places,  certain  ca^es.- 
killing  cattle  and  hogs,  and  committing  other  injuries  to  the  R^  S.  c.  iii,s. 
inhabitants  of  the  State ;  in  all  sueh  cases,  upon  intelligence 

that  any  slave  is  lying  out  as  aforesaid,  any  two  justices  of 
the  peace  for  the  county  wherein  he  is  supposed  to  lurk  or  do 
mischief,  are  hereby  empowered  and  required  to  issue  procla- 
mation against  him,  (reciting  his  name  and  the  name  of  the 
owner  if  known,)  thereby  requiring  him  forthwith  to  surren- 
der himself;  and  also  to  empower  and  require  the  sheriff  of 
the  county  to  take  such  power  with  him,  as  he  shall  think  fit 
and  necessary,  for  going  in  search  and  pursuit  of,  and  effectu- 
ally apprehending  sueh  outlying  slave;  which  proclamation 
shall  be  published  at  the  door  of  the  court  house,  and  at  such 
other  places  as  the  justices  shall  direct.  And  if  any  slave 
against  whom  proclamation  hath  been  thus  issued,  stay  out, 
and  do  not  immediately  return  home,  any  person  may  capture 
him  ;  and  in  case  of  flight  or  resistance,  may  slay  him  without 
accusation  or  impeachment  of  any  crime. 

26.    No   slave    shall  go    armed  with    gun,  sword,  or    other  Slaves  not  to 

.      ,1   .  1  1      11   u        1  go  armed,  or 

weapon,  or  shall  keep  any  such  weapon,  or  shall  hunt  or  range  |unt  with 
with  a  gun  in  the  woods,  upon  any  pretence  whatsoever  ;  and  ^""^;~3'  ^' "" 
if  a  slave  shall  be  found  offending  herein,  any  person  may 
seize  and  take  to  his  own  use  such  gun  or  other  weapon,  and 
may  apprehend  and  bring  such  slave  before  a  justice  for  trial 
and  punishment,  and  send  him  home  ;  and  the  master  or  owner 
48* 


570 


Not  properly 
fed,  owners 
liable  for  their 
stealing. — R.  S. 
c.  Ill,  6.  26. 


Not  allowed  to 
hire  their  time. 
Penalty  on 
master. 
Slave  indicta- 
ble. 

Punishment. — 
B.  S.c.  Ill,  6. 
SI. 


Not  to  go  at 
large  as  free- 
men.—P..  S.  c. 
111,6.32. 


Permitting 
slaves  of  others 
to  meet  for 
dancing,  un- 
less, &c.,  amis- 
demeanor. — R. 
S.  c.  Ill,  s.  33. 


Inferior  of- 
fences of 
slaves,  what. — 
n.  S.c.  Ill,  s. 
21,  24,  25,  27, 
28,  2'J,  30,  34, 
02. 


SLAVES   AND   FREE  NEGROES.  [ChAP.    107. 

shall  pay  the  taker  up  of  such  armed  slave,  the  same  reward 
as  i.s  allowed  for  taking  up  runaways. 

27.  In  case  any  slave  who  shall  appear  not  to  have  been 
properly  clothed  and  fed,  shall  be  convicted  of  stealing  any 
corn,  cattle,  hogs,  or  other  goods  whatsoever,  from  any  person 
not  the  owner  of  such  slave,  such  injured  person  may  main- 
tain an  action  on  the  case,  against  the  possessor  of  such 
slave,  for  his  damages. 

28.  No  person  under  any  pretence  whatever,  shall  hire  to 
his  slave,  or  to  a  slave  under  his  control,  his  time,  on  pain  of 
forfeiting  forty  dollars  for  every  offence.  And  it  shall  be  the 
duty  of  all  grand-juries  to  make  presentment  of  any  slave, 
who  shall  be  permitted  by  his  master  to  go  at  large,  hav- 
ing hired  his  time ;  and,  on  indictment  being  found  for  the 
offence,  a  capias  shall  issue  to  take  such  slave  and  secure  him 
in  custody,  or  on  sufficient  recognizance  of  his  master  or  oth- 
ers, so  that  he  be  before  the  next  court  to  answer  to  the  indict- 
ment. The  master  shall  have  notice  of  the  trial,  as  in  other 
cases  is  provided,  and  the  court,  at  the  return  of  the  capias, 
shall  impanel  a  jury  to  inquire  and  try  the  truth  of  the  charge 
against  the  slave  ;  and  if  he  be  found  guilty,  he  shall  be  pub- 
licly hired  out  by  the  sheriff  for  one  year,  who  shall  take  bond 
with  security  from  the  hirer  for  the  price,  and  for  furnishing  all 
necessaries,  and  taking  proper  care  of  the  slave;  and  the  bond 
shall  be  for  the  use  of  the  poor  of  the  county.  Provided,  al- 
ways, that  if  such  slave  be  the  property  of  a  ward,  he  shall 
be  hired  out  for  the  remainder  only  of  the  time  for  which  he 
may  belong  to  the  person  from  whom  he  hired  his  time. 

29.  No  slave  shall  go  at  large  as  a  free  man,  exercising  his 
own  discretion  in  the  employment  of  his  time  ;  nor  shall  any 
slave  keep  house  to  him  or  herself  as  a  free  person,  exercising 
the  like  discretion  in  the  employment  of  his  or  her  time :  and 
in  case  the  owner  of  slave  consent  to  the  same,  or  con- 
nive thereat,  he  shall  be  deemed  guilty  of  a  misdemeanor, 
and  on  conviction  be  fined  not  exceeding  one  hundred  dol- 
lars. Provided,  however,  that  any  person  may  permit  his  slave 
to  live  or  keep  house  upon  his  land,  for  the  purpose  of  at- 
tending to  the  business  of  his  master. 

30.  No  person  shall  grant  permission  for  any  meeting  of  the 
slaves  of  others,  at  his  house,  or  on  his  plantation,  for  the  pur- 
pose of  dancing,  under  the  penalty  of  forfeiting  twenty  dollars, 
to  any  who  will  sue  therefor,  unless  such  slaves  shall  have  a 
special  permit  in  writing  from  their  owners  for  that  purpose; 
and  the  person  so  offending  shall  be  deemed  guilty  of  a  mis- 
demeanor. 

31.  It  shall  not  be  lawful  for  any  slave  to  be  insolent  to  a 
free  white  person ;  nor  to  utter  mischievous  and  slanderous 
reports  about  any  free  white  person;  nor  to  wilfully  trespass 
on  his  property  or  person ;  nor  to  intermarry  or  cohabit  with 
any  free  person  of  color;  nor  for  any  male  slave  to  have  sexual 
intercourse,  or  indulge   in   any  grossly  indecent  familiarities 


Chap.  107.]        slaves  and  free  negroes.  571 

with  a  white  female ;  nor  to  produce  any  forged  free  pass  or 
certificate  of  freedom  ;  nor  to  go  from  off  the  plantation  or  seat 
of  land,  where  such  slave  may  be  appointed  to  live,  without  a 
certificate  of  leave  in  writing  from  his  master,  or  manager;  nor 
to  raise  any  horses,  cattle,  hogs,  or  sheep;  nor  to  teach,  or 
attempt  to  teach,  any  other  slave  or  free  negro  to  read  or  write, 
the  use  of  figures  excepted ;  nor  to  sell  any  spirituous  liquor  or 
wine ;  nor  to  play  at  any  game  of  cards,  dice,  or  nine  pins ; 
nor  to  play  at  any  game  of  chance,  hazard,  or  skill,  for  any 
money,  liquor,  or  any  kind  of  property,  whether  the  same  be 
staked  or  not;  nor  to  set  fire  to  any  woods,  except  in  such 
manner  as  is  allowed  by  statute  ;  nor  to  preach  or  exhort  in 
public,  or  in  any  manner  officiate  as  a  preacher  or  teacher,  at 
any  prayer-meeting  or  other  association  for  worship,  where 
slaves  of  different  families  are  collected  together;  nor  to  traffic 
with  another  slave,  by  buying  of,  or  selling  to  him,  any  articles 
of  property,  forbidden  absolutely,  or  forbidden,  except  by  writ- 
ten permission,  to  be  the  subject  of  traffic  between  white  per- 
sons and  slaves  ;  nor  to  traffic  with  any  other  person,  by  buying 
of,  or  selling  to  him,  any  article  of  property,  unless  such  other 
person  may  lawfully  buy  of,  or  sell  the  same  to,  said  slave. 

32.  All  the  offences  mentioned  in  the  foregoing  section,  and  inCenor  of- . 

,,         ,  .     ,  ,  ,  ,  °      .  •  1     •        j_i  •     fences  cognir.a- 

all  other  misdemeanors  done  by  slaves,  mentioned  ui  this  bie  by  one  jus- 
chapter,  the  prescribed  punishment  whereof  is  whipping;  and  j^j  ^ 41  ^' "" 
all  crimes  by  them  committed,  whereunto,  if  done  by  a  free 
person,  extends  the  jurisdiction  of  the  county  court ;  and  all 
petty  offences  forbidden  by  them  to  be  done,  shall  be  cogniza- 
ble before  a  single  justice  of  the  peace  of  the  county  wherein 
the  offence  is  committed,  who  shall  have  full  power  to  issue 
summons  for  witnesses,  and  compel  their  attendance ;  and  on 
conviction,  the  ofiending  slave  shall  receive  not  exceeding 
thirty-nine  lashes  on  his  bare  back :  and  in  all  such  trials,  as 
many  justices  as  think  proper  may  sit  in  judgment. 

33.  Whenever  any  slave  shall  be  convicted  before  a  justice  Appeals  from 

,,  _  •'„  ,,  ,  iiirrjii  justice  allow- 

of  the  peace,  of  any  onence,  the  master,  on  behalf  of  the  sfave,  ed.— 1842, «.  3. 
may  appeal  to  the  next  county  or  superior  court,  on  entering 
into  sufficient  recognizance  for  the  slave,  and  giving  good  se- 
curity, as  in  other  cases  of  appeals. 

34.  The  superior  court  shall  have  exclusive  original  jurisdic-  Felonies,  «:«., 

I  ^  o  J  Qf  tried  ID  su- 

tion  of  all  felonies  and  other  offences  committed  by  slaves,  peVior  court. 
which,  by  section  thirty-two,  are  not  assigned  for  trial  before  a  ^'^j^s  tned  ns 
justice  of  the  peace  ;  and  the  trial  shall  be  conducted  in  like  s.  c.  111,  s.  42, 
manner  as  the  trials   of  freemen  for  the   same  offence ;  and  *^'  ■'^• 
moreover,  the  jurors  shall  be  slave-owners. 

35.  If  any  number  of  slaves  shall,  at  any  time,  consult,  ad-  Conspiracy  of 
vise,  or  conspire  to  rebel  or  make  insurrection,  or  shall  plot,  or  p,',nisiiai)ie.— 
conspire  to  murder  any  person,  every  such  consulting,  plotting,  '\-  S-  c.  111,  s. 
or  conspiring,  shall  be  adjudged  and  deemed  felony ;  and   any 

slave  convicted  thereof,  in  the  manner  prescribed  by  law,  shall 
suffer  death,  or  be  transported  as  hereinafter  provided. 

06.    If  any  slave  be  found  in  a  state  of  rebellion  or  insurrec-  insurrection  of 

^  slave*,  how 


572  SLAVES   AND   FREE   NEGROES.  [ChAP.  107. 

ptini-hniiio  —  fion,  or  shall  agree  to  join  any  conspiracy  or  insurrection,  or 
3(j.  ■  ■  '  '  shall  procure  or  persuade  others  to  join  or  enlist  for  that  pur- 
pose, or  sliall  knowingly  and  wilfully  aid,  assist,  or  encourage 
any  slaA'e  in  a  state  of  rebellion,  or  engaged  in  a  conspiracy  to 
make  insurrection,  every  slave,  so  offending  and  being  tliereof 
convicted,  shall  suffer  death,  or  be  transported  as  hereinafter 
provided. 
Free  persons         37,    jf  j^  fi-pg  person  shall  I'oin,  or  agree  to  join,  in  any  con- 

cnnsnirinewitli        .  in-  -  •  /.      1  in  '^ 

Eiaves,  ii(,w  spiracy,  rebellion,  or  insurrection  of  slaves,  or  shall  procure  or 
punishable.— ^  persuadc  others  to  join  or  enlist  for  that  purpose,  or  shall 
37.  '     knowingly  and  wilfully  aid,  assist,  or  encourage  any  slave  in  a 

state  of  rebellion,  or  engage  in  a  conspiracy  to  make  insurrec- 
tion, every  free   person   so   offending,  and  thereof  convicted, 
shall  suffer  death. 
What  evidence      28.    In  all  cases,  wherein  a  slave  shall  be  prosecuted  for  the 

recoivea  m  tn-      rr  ^  •!      i  •  •  1  •         r  i      i  •  .  ^     1  . 

aisforinsnr-  onences  described  in  sections  thirty-nve  and  thirty-six  of  this 
rection.  '-^'j-—  chapter,  the  court  may  take  for  evidence  the  oath  of  one  or 
ss.  '      more   witnesses,  the   confession   of  the   offender  freely  given 

without  any  undue  influence  by  terror  or  persuasion,  or  the 
testimony  of  a  negro  or  other  person  of  color,  bond  or  free ; 
but  in  all  cases,  where  the  testimony  of  one  negro  or  person  of 
color  only,  shall  be  admitted,  the  same   shall  not  be  deemed 
sufKcient  to  convict  the  person  charged;  unless  it  shall  be  sup- 
ported by  such  pregnant  circumstances  in  the  trial,  as  to  the 
jury  shall  appear  convincing  proof,  when  taken  with  such  tes- 
timony. 
S'a^s  conrict-      39.    When  any  slave  shall  be  convicted  of  either  of  the  fel- 
death,  or  be      onics  Created  by  the  thirty-fifth  and  thirty-sixth  sections  of  this 
tiansported.—   chapter,  he  shall  suffer  death  ;  or  at  the  discretion  of  the  court, 
3!).  ■   ■      '   ■  shall  be  sentenced  to  be  transported  beyond  the  limits  of  the 
United  States,  under  such  restrictions  and  upon   such  condi- 
tions, as  good  policy  and  the  public  safety  at  the  time  shall 
require. 
Returning  vol-      40.    Whenever  a  slave  shall  be  transported,  in  pursuance 
sufler  death,     of  the  provisions  of  this  chapter,  by  the  owner,  or  by  the  State, 
If  brought        and  such  slave  shall  ever  thereafter  voluntarily  return  to,  and 
— K.  S.  c.  iiij  be  found  in  the  State,  he  shall  suffer  death,  upon  due  convic- 
^-  *"•  tion  thereof.    And  if  any  slave  so  transported,  shall  be  brought 

into  any  county  in  this  State  by  his  master,  or,  against  his  will, 
by  any  other   person,  such  slave   shall  be  forfeited  (on  proof 
thereof)  to  the   county  into  which  he  maybe  brought;  and 
the  slave  shall  be   again  transported  by  order   of  the   county 
court,  and  sold  for  the  use  of  the  county. 
In  cape  of  in-         41.    In  al|  cases  of  insurrection  or  rebellion,  or  of  conspiracy 
a  commission  '  to  make  insurrection,  or  to   murder,  or  to  rebel,  or  any  such 
of  oyer  and       contemplated  conspiracy,  insurrection,  or  rebellion,  of  any  slave 

fermmermav  ,        '  ji       •    r  i-  1      1   ^i  lee 

issue.— R.  s^c.  or  slaves,  upon  the  infortnation  and  at  the  request  01  any  hve 

111,  s.  53.         justices  of  the  peace  of  the  county  in  which  such  offences  shall 

happen  or  may  be  contemplated,  the   governor  may  issue  a  • 

coiTimission  of  oyer  and  terminer,  to  any  one  of  the  judges  of 

the  superior  courts  of  law  ;  who  shall  hold  said  court  forthwith, 


Chap.  107.]        slaves  and  free  negroes. 


573 


and  be  clothed  with  all  the  powers  necessary  for  the  trial  of 
such  slaves. 

42.  The  officer  prosecuting  in  behalf  of  the  State,  attending  l^^^^f^l'l_ 
such  court,  shall  be  entitled  to  receive  the  same  compensation,  r.  s.  o.  iii,  s. 
as  for  attending  a  term  of  a  superior  court.  ^*- 

43.  When  any  person,  indicted  before  a  court  of  oyer  and  c^rtmayeon- 
terminer,  shall,  upon  affidavit  of  himself  or  any  other,  show  cases  to  regular 
such  circumstances  and  facts  to  the  court,  as  would  induce  the  i7i"s7s6". '''  °' 
judge,  in  the  regular  courts,  to  remove  the  trial  out  of  the 

county,  the  judge  may,  in  his  discretion,  continue  the  indict- 
ment, and  commit  or  bind  over  the  prisoner,  as  the  case  may 
require,  for  trial  at  the  next  superior  court  for  the  county  ;  when 
the  same  shall  be  disposed  of,  according  to  the  course  of  the 
court. 

44.  Any  slave,  or  free  negro,  or  free  person  of  color,  con-  Attempting^^ 
victed  by  due  course  of  law,  of  an  assault  with  intent  to  com-  ftmire"— R.'  S. 
mit  a  rape,  upon  the  body  of  a  white  female,  shall  suffer  death,  c  ni,  s.  78. 

45.  Any  inhabitant  of  this  State,  desirous  to  emancipate  ^^'^i\",X"°° 
any  slave,  may  file  a  petition  in  writing,  in  any  of  the  superior 

courts,  setting  forth,  as  near  as  may  be,  the  name,  sex,  and  age 
of  the  slave,  and  praying  permission  to  emancipate  the  same, 
and  the  court  shall  grant  the  prayer,  on  the  following  condi- 
tions, and  not   otherwise,  namely:   (1.)   The  petitioner    shall 
show  that  he   has  given  public  notice  of  his  intention  to  file 
the  petition,  at  the  court  house  of  the  county,  and  in  the  near- 
est gazette,  for  at  least  six  weeks  before  the  hearing  of  the 
petition  ;  and  (2)  shall  enter  into  bond,  with  two  able  sureties,  to^aTor'fre Jd  • 
payable  to  the   State  of  North  Carolina,  in  the   sum   of  one  slaves  to  leavs 
thousand  dollars  for  each  slave  named   in  the  petition,  condi- ^^^^^'^^'/^"i^ 
tioned  that  he  shall  honestly  and  correctly  demean  himself,  s.  57. 
while  he  shall  remain  within  the  State  ;  and  that  he  will,  within 
ninety  days  after  granting  the  prayer  for  emancipation,  leave 
the  State,  and  never  afterwards  come  within  the  same.     Pro- 
vided, nevertheless,  that  no  such  emancipation  shall  in  any 
manner  invalidate  or  affect  the  rights  of  the  creditors  of  such 
petitioner. 

46.  Any  person  may,  by  last  will  and  testament,  direct  and  'f^™/™"";,^'' 
authorize  his  executors  to  cau.<«e  to  be  emancipated  any  of  his  directed  br 
slaves,  which  shall  justify  the   executor  in  doing  the   same ;  ^''^^^1'— ^-g^^- °- 
who,  to  that  end,  is  hereby  directed  to  file  a  petition  according 

to  the  preceding  section,  in  the  same  manner  as  if  he  were 
absolute  owner  of  the  slaves;  and  such  slaves  shall  be  emanci- 
pated on  the  same  terms  and  conditions,  and  under  the  same 
liabilities,  as  are  prescribed  in  the  said  section.  Provided 
always,  that  no  such  emancipation  shall,  in  any  manner,  exempt 
the  slaves  from  the  claims  of  creditors.  And  provided  further, 
that  permission  to  emancipate  any  slave,  under  the  directions 
of  any  last  will  and  testament,  shall  not  be  granted  within  two 
years  after  probate  of  the  same,  unless  the  executor  will  enter 
into  bond  with  good  security,  payable  to  the  State  of  North 
Carolina,  in  double  the  value  of  each  slave  emancipated,  con- 


574  SLAVES   AND   FREE   NEGROES.  [ClIAP.  107. 

ditioned  to  be  responsible  to  the  creditors  of  his  testator  for 
the  value  of  said  slaves, 
may  direct  to      .  "^"^ '    Whenever  it  may  be  directed  by  a  testator,  that  any  of 
what  place       his  slaves  shall  be  emancipated  and  carried  to  any  State,  terri- 
larrieT'''''^     tory.  Or  Country,  and  it  may  not  be  convenient  to  carry  them 
to  the  place  specially  appointed,  the  court  shall  designate  and 
prescribe  to  what  other  place  the  slaves  shall  be  carried  after, 
or  for  emancipation. 
TyTs  to  be"^       48.    Whenever  a  female  slave  shall  by  will  be  directed  to  be 
emancipated     emancipated,  all  her  issue,  born  after  the  date  of  the  will,  shall 
mother.^  be  deemed  to  have  been  liJvewise  intended  by  the  testator  to  be 
emancipated;  and  the  court  shall  so  declare,  unless  a  contrary 
intent  appear  by  the  will,  or  by  some  disposition  of  the  slave 
so  born,  inconsistent  with  such  presumed  intent. 
fvmay'bT^'^      49-    It  may  be  lawful  to  emancipate,  upon  petition,  and  un- 
emancipated     der  the  ordcr  of  any  superior  court  of  law,  any  slave  over  the 
8ervice's''°™"^  ^»°  °^  ^^^^  years,  if  his  owner  shall  prove,  by  his  own  oath. 
Master  to  give  or  otherwise,  that  said  slave  has  performed  meritorious  scrvi- 
bond,^&c.  — R.  ees,  (which  shall  be  more  than  mere  general  duties) ;  and  the 
petitioner  will  swear  that  he  has  not  received  in  money  or  oth- 
erwise, the  price  or  value,  or  any  part  thereof,  of  said  slave ; 
or  been  induced  to  petition  for  his  emancipation  in  consid- 
eration of  any  price  paid,  or  to  be  paid  therefor.     Provided, 
that,  before  such   slave  shall  be  emancipated,  the  petitioner 
shall  give  bond  and  good  security,  in  the  sum  of  five  hundred 
dollars,  payable  to  the  State  of  North  Carolina,  that  said  slave 
shall  honestly  and   correctly  demean   himself,  so  long  as  he 
shall  remain   in   the   State,   and  shall   not  become   a   county 
charge  :  which  bond  may  be  sued  upon,  in  the  name  of  the 
State,  to  the  use  of  the  poor,  or  of  any  person  injured  by  the 
malcondnct  of  such  slave,  as  often  as  it  may  be  broken. 
for^oS'cause       ^^'    "^^'^'"7  emancipation  granted  to  any  slave,  in  pursuance 
toieuTetlie  '  '  of,  and  according  to,  the  directions  prescribed  in  this  chapter, 
|^yj®'°'''°^'y  other    than    emancipation   for    meritorious    services,    shall    be 
upon   the   express   condition    that  such    slave,   within   ninety 
days  from  the  time  of  granting  the  same,  shall  leave  the  State, 
and  never  thereafter  return  into  it.     And,  if  any  such  slave 
shall  refuse  or  neglect  to  leave  the  State,  within  that  time,  or 
shall  ever  come  within  the  State,  after  having  left  it,  any  jus- 
tice  of  the  peace   of  the   county  wherein   such   emancipated 
slave  may  be  found,  shall  issue  a  warrant  to  arrest  him  ;  and, 
upon  proper  proof  made  of  his   having  violated   the   provis- 
ions of  this  chapter,  the  justice  shall  commit  him  to  the  jail 
of  the  county,  there  to  remain  until  the  next  ensuing  term  of 
the  county  court,  where,  on  indictment  found  against  him  for 
the  causes  aforesaid,   or  any   of  them,   the  trial  shall  be  by 
jury;   and  if  found  guilty,  the  offender  shall  be  sentenced  to 
e^aJrrv.-R'."s'  '^'^  P'lblicly   sold,   and   the   purchaser  shall   hold   him   forever 
c.  Ill," s.DS,0L  thereafter  as   a   slave,  and   the   proceeds   of  sale   be   divided 
equally  between   the  informer,  and  the   poor  of  the   county. 
Provided,   however,  that  the  accused  may    appeal  from  the 
judgment  of  the  court  to  the  superior  court  of  the  county. 


Chap.  107.]         slaves  and  free  negroes.  575 

51.  If  any  emancipated  slave  refuse  or  neglect  to  leave  the  An.l  fiie  boud 

.  .       -I        c   I  •  I      Ti  'i-i  ■       ii       put   m  suit. — 

State,  as  is  required   of  him,  or  shall  ever  come  within  the  i,_  s.c.  111,3. 
same  after  having  left  it,  any  person  may  bring  suit  in  the  1^2. 
name  of  the  State,  for  the  joint  use  of  himself  and  the  war- 
dens of  the  poor,  of  the  county,  upon  the  bond  given  pursu- 
ant to  the  provisions  of  this  chapter. 

52.  All  grand-iuries  shall  present  every  emancipated  slave,  FreetUhives 
who  may  violate  the  provisions  of  this  chapter;  and  the  pros-  to  be  presented, 
ecuting  ofHcer  shall  prosecute  such  slave  as  hereinbefore  pro- —P- S- c.  111, 
vided. 

53.  No  slave  shall  be  set  free,  but  according  to  the  ;   ovis-  ^^,"',J[7^'',^._ 
ions  of  this  chapter.  ll  a.  c.  111. 

-^4.    It  shall  not  be  lawful  for  any  free  negro  to  migrate  into  Free  negro  not 
this  State  ;  and  if  one  shall  do  so,  he  shall  be  deemed  guilty  |L"s'Sw.'' '"'° 
of  a  misdemeanor  during  all  the  time  of  his  stay,  and  may  Misdeuicanor. 
be  indicted  from  time  to  time,  until  he  removes  out  of  the  rI's.  c!Tii7s- 
State  ;  and  on  every  conviction  shall  be  fined  live  hundred  dol-  05,  66, 67. 
lars,  for  the  payment  of  which  he  may  be  hired  out  as  herein- 
after directed.     Provided,  hmvever,  that  such  free  negro  shall 
not  be  indicted  within  thirty  days  after  payment  of  the  fine, 
or  the  expiration  of  the  time  of  service,  adjudged  and  suffered 
on  a  previous  conviction. 

t^5.    Any  person  who  shall  bring  into  this  State,  by  water  PenEity  for 
or  land,  any  free  negro,  shall  forfeit  and  pay,  for  every  person  negroeamtoAe 
so  brought  in,  five   hundred   dollars,  to   be  recovered  in  the  stSte.  — R.  s. 
name   of  the    State,  for  the   use   of  the   county  wherein   the  ''■  "i'  ^-  °^- 
offence  shall  be  committed.     Provided,  that  this  section  shall 
not  extend  to  masters  of  vessels,  bringing  into  this  State  any 
free  negro,  employed  on  board  and  belonging  to  such  vessels, 
and  who  shall  therewith-  depart ;  nor  to  any  person,  travelling 
in  or  through  this  State,  having  any  free  negro  as  a  servant, 
who  shall,  with  such  person,  depart  out  of  the  State. 
w^6.    Free  negi-oes,  not  now  lawful  residents  and  inhabitants  Free  negroes 
of  the  State,  shall  never  hereafter  become   so  by  any  length  IheTr'Tssu'efnat 
of  time,  neither  they  nor  their  issue;  and  in  all  cases  where  to  become  in- 
such  free  negi'oes  are  under  the  age  of  sixteen,  it  shall  be  the  jfisdemeanor. 
duty  of  the  county  court  of  the  county  in  which  they  reside.  To  be  removed. 

^       -^  XI  Ixi  f  XI  X  1      u  1  —  K.  S.  c.  Ill, 

to  remove  them  at  the  expense  ot  the  county;  and  all  such  as  s,  Qr,_  ' 

remain  to  that  age,  shall  be  deemed  guilty  of  a  misdemeanor, 
and  on  conviction,  shall  be  fined  five  hundred  dollars. 
l/S^.    If  any  free  negro,  who  may  be  a  resident  of  this  State,  Migr.itinp;  and 
shall  migrate  and  go  into  any  other  State,  and  shall  be  absent  diJyrno't'to're- 
for  the  space  of  ninety  days  or  more,  he  shall  cease  to  be  a  turn,  uuii^ss 
resident  and  an  inliabitant  of  this   State,  and  it  shall  not  be  !!.'^i!""!'o''.  lii, 
lawful  for  him  to  return  to  the   State  ;  and  if  any  free  negro  ?•  "«• 
shall  return,  he  shall  be  deemed  and  held  to  have  migrated  to 
the  State.     Provided,  that  no  persons  shall  incur  the  penalties 
or  disabilities  prescribed  in  this  section,  if  he  shall  have  been 
prevented  from  returning  to  this    State  by  sickness,  or  other 
unavoidable  occurrence. 
^58.    It  shall  be  the  duty  of  the  county  solicitors  to  give  in  {^™(,"j'^J.'"JJt*," 


576  SLAVES    AND   FREE   NEGEOES.  [ChAP.    107. 

present  thoso     charge  to  the  grand-jnry,  the  law  relating  to  the  migration  of 
S°atc"— k"s!°  f''*^*^  "^gfoes  into  the  State:  and  it  is  hereby  made  the  duty 
c.  Ill, ».  75.      of  the  grand-jury   to   present  all  cases   of  that  kind  in  their 
county,  arising  under  this  chapter,  within  the  knowledge  of 
any  of  them  ;  and  the  said  solicitors  shall,  in  all  such  cases, 
prosecute  for,  and  in  behalf  of  the  State. 
Free  negi-oes         59.    If  any  free   person   of  color  shall  preach  or   exhort  in 
in' pubUo!  —  k!  Public,  or  in  any  manner  olBciate  as  a  preacher  or  teacher  in  any 
S.  c.  Ill,  s.  34.  prayer-meeting,  or  other  association  for  worshiji,  wliere  slaves 
of  different  families  are  collected  together,  he  shall  be  deemed 
guilty  of  a  misdemeanor;  and  on  conviction,  shall,  for  each 
offence,  receive  not  exceeding  thirty-nine  lashes  on  his  bare 
back. 
Vagabond  free       60.    If  a  free  uegi'o  who  is  able  to  labor,  shall  be  found  in 
deaiTwith?^''     any  county    spending  his   time    in    idleness    and  dissipation, 
or   having   no   regular  or  honest  employment  or  occupation, 
which  he  is  accustomed  to  follow,  any  citizen  may  apply  to  a 
justice  of  the  peace  of  said  county,  and  upon  aOidavit,  obtain 
a  warrant  to  arrest  such  person  and  bring  him  before  some 
justice  of  the  county  ;  and  if,  upon  examination  of  the  case, 
it  shall  appear  that  the  free  negro  comes  within  the  provisions 
of  this  section,  the  justice  shall  bind  him  with  reasonable  secu- 
rity, to  appear  at  the  next  county  court  of  the  county ;  and  in 
case  he  shall  fail  to  give  security,   he  shall  be  committed  to 
the  jail  of  the  county,  until  the  next  county  court  thereafter : 
and  it  shall  be  the  duty  of  the  court,  if,  tipon  examination  of 
the  case,  it  shall  come  within  the  meaning  of  this  section,  to 
require  such  free  negro  to  enter  into  bond,  with  sufficient  secu- 
rity in  a  reasonable  sum,  payable  to  the  State  of  North  Caro- 
lina, conditioned  for  his  good  behavior,  and  industrious,  peace- 
able deportment,  for  one   year.     And  in  case  he  shall  fail  to 
give  such  security,  or  shall  not  pay  the  costs  and  charges  of 
Hires  of  vaga-  the  prosecution,   the  court  shall   hire   out  such  free  negro  to 
groes  paid'to"    Service  and  labor,  for  a  term  of  time  which  to  them  may  seem 
county  trustee,  reasonable  and  just,  and  calculated  to  reform  him  to  habits  of 
sTes  70.*^       '  industry  and  morality,  not  exceeding  three  years  for  any  one 
offence.     And  all  sums  of  money  which  may  arise  under  the 
provisions  of  this  section,  shall  be  paid  to  the  county  trustee. 
Free  negroes         61.    It  shall  not  be  lawful  for  a  free  negro  to  intermarry,  or 
with'slTveZ—  cohabit  and  live  together  as  man  and  wife,  with  any  slave ; 
R.  S.  0.  Ill,  s.  and  any  free  negro  offending  herein,  .shall  be  liable  to  indict- 
ment, and,  upon  conviction,  shall  be  fined  and  imprisoned,  or 
whipped  at  the  discretion  of  the  court ;  the  whipping  not  to 
exceed   thirty-nine    lashes.     Provided.,  that  this   section   shall 
not  extend  to  any  case  where  an  intermarriage,  or  cohabiting, 
or  living  together  took  place,  by  and  with  the  consent  of  the 
master  or  mistress,  before  the  first  day  of  November,  A.  D.  one 
thousand  eight  hundred  and  forty-four. 
Nor  gamble  62.    No  free  negro  shall  play  at  all  with  any  slave  at  any 

norViay'^with   E^''^^  of  card.s,  dice,  or  nine  pins;  nor  shall  he  play  witii  any 
them  at  certain  slave  at  any  game  of  chance,  hazard,  or  skill,  for  money,  liijuor, 


ClUP.    107.]  SLAVES    AND    FREE   NEGROES.  577 

or  any  thing  of  value;  and  any  free  negro   offending  herein  giimes.  —  R.  S. 
shall  be  deemed  guilty  of  a  misdemeanor,  and,  on  conviction,  '^'  ^^^'  ^'     ' 
shall  receive  a  whipping,  not  exceeding  thirty-nine  lashes,  on 
his  bare  back. 

63.  If  any  free  negro,  or  person  of  mixed  blood,  shall  know-  ^'o""  suffer 
ingly  suffer   any  slave   to   play  at  any  game   of  cards,   dice,  1,1" f,^tl°j,fr™ 
nine  pins,  or  any  game  of  chance,  hazard,  or  skill,  whether  for  i'0"fes,  &c. — 
money,  liquor,  or  any  kind  of  property,  or  not,  in  his  house,  or  go.  '  °'      '^' 
in    the  yard,   field,   or  garden    attached    or    belonging  to   his 

house,  he  shall  be  deemed  guilty  of  a  misdemeanor;  and,  on 
conviction,  shall  receive  not  exceeding  thirty-nine  lashes  on  his 
bare  back. 

64.  If  a  free  negro  shall  entertain  any  slave  in   his   house,  Nor  entortain 
during  Sunday,  or  in  the  night  between  sunset  and  sunrise,  or  at  night. — 
he  shall  forfeit  and  pay  two  dollars  for  every  offence,  for  the  ^-  s.  c.  111,  s. 
use  of  the  county  in  which  the  offence  shall  be  committed. 

6.5.    No  free  negro  shall  hawk  or  peddle  in  any  county,  with-  Nor  hawk  and 
out  first  obtaining  a  license  from  the  court  of  pleas  and  quar-  ficense.  — R.  S. 
ter-sessions  of  that  county  ;  which  license  shall  be  granted  for  <=■  m,  s.  85. 
but  one  year,  and  only  when   seven   or  more  justices  are  pres- 
ent, and  upon  satisfactory  evidence  of  the  good  character  of 
the  applicant.     And  if  any  free  negro  shall  oflcnd  against  this 
section,  he  shall  be  deemed  guilty  of  a  misdemeanor. 
^-CB.    If  any  free  negro  shall  wear  or  carry  about  his  person,  Nor  wear  or 
or  keep  in  his  house,  any  shot-gun,  musket,  rifle,  pistol,  sword,  {^owieSnivss 
dagger,  or  bowie-knife,  unless  he  shall  have  obtained  a  license  &c.,  witbont' 
therefor  from  the  court  of  pleas  and  quarter-sessions  of  hisJj'^gQ^'^'"^     ' 
county,  within  one  year  next  preceding  the  time  of  the  wear- 
ing, keeping,  or  carrying  thereof,  he  shall  be  guilty  of  a  mis- 
demeanor. 

67.  If  any  free  negro  shall,  directly  or  indirectly,  sell  or  give  Nor  sell  spirit- 
to  any  person,  bond  or  free,  any  spirituous  liquor,  he  shall  be  1S44  c  "g?"" 
deemed  guilty  of  a  misdemeanor. 

68.  Every  slave  or  free  person  of  color,  who  shall  hereafter  Slaves  convict- 
be  convicted  of  any  felony,  for  which  no  specific  punishment  ^^^("[^pij""'^^^^ 
is  prescribed  by  statute,  and  which  is  now  allowed  the  benefit  punisiiod.— R. 
of  clergy,  shall  be  imprisoned  at  the  discretion  of  the  court,  '''  "'  ^'^  ^'*^' 
not  exceeding  two  years  ;  and,  in  addition  to  such  imprison- 
ment, the  court  may  sentence  the  convict  to  receive   one  or 

more  public  whippings,  or  to  stand  in  the  pillory,  or  (if  a  free 
negro)  to  pay  a  fine,  regard  being  had  to  the  circumstances  of 
each  case. 

69.  When  a  slave  shall  be  apprehended  or  indicted  for  any  Owners  to  have 
ofl'ence,  whereof  the  superior  court  has  original  jurisdiction,  oTuiai." 

his  owner,  if  known,  shall  have  ten  days'  notice  of  the  trial, 
in  order  that  he  may   have  an   opportunity  of  defending  his 
slave  ;  the  cost  of  which  notice,  and  all  other  costs,  attending  Lia,w&ftrc(Mts. 
the  trial  of  the  slave,  shall  be  paid  by  the  owner,  if  such  slave,  ^4s'.    '   '      ' 
being  a  free   man,  would  be  liable  to   the  payment  thereof. 
And  if  the  owner  refuse   to  pay  the  same,  execution  in  the 
name  of  the  State  may  issue  against  such  owner. 
49 


SLAVES   AND   FREE   NEGROES.  [ChAP.    107. 


Wlien  owner 
Ciinnot  be  noti- 
fied, counsel 
appointed. 


Evklcnce  of 
slaves  nnd  per- 
sons of  color, 


nllowed.— R.  S 
c.  Ill,  s.  80. 


70.  When  the  owner  of  any  slave  who  may  be  tried  in 
virtue  of  tliis  chapter,  shall  not  be  known,  or  cannot  be  ascer- 
tained, or  shall  reside  out  of  the  State,  the  court  shall  appoint 
counsel  to  appear  for  the  prisoner,  who  shall  be  allowed  the 
same  fees  as  the  attorney  for  the  State  is  allowed  for  such 
criminal  prosecutions ;  after  which,  the  trial  may  proceed  in 
the  same  manner,  as  if  the  owner  had  been  notified  agreeable 

Who  shall  have  to  the  directions  of  this  chapter ;  and  the  fees  for  the  counsel, 
L?c.'in,T.  49.  clerk,  and  sheriff",  shall  be  paid  by  the  county  having  cogni- 
zance of  the  ofience,  as  other  county  charges. 

71.  Negroes,  Indians,  and  persons  of  mixed  blood,  descended 
from  negro  and  Indian  ancestors,  to  the  fourth  generation  in- 

nst  whom  clusive,  (though  one  ancestor  of  each  generation  may  have 
"'  ~  been  a  white  person,)  whether  bond  or  free,  shall  be  deemed 
and  taken  in  law  to  be  incapable  to  be  witnesses  in  any  case 
whatever,  except  against  each  other.  In  all  pleas  of  the  State, 
where  the  defendant  may  be  a  negro,  Indian,  or  person  of 
mixed  blood,  descended  from  negro  or  Indian  ancestors,  to  the 
fourth  generation  inclusive,  (though  one  ancestor  of  each  gen- 
eration may  have  been  a  white  person,)  whether  such  defend- 
ant be  bond  or  free,  the  evidence  of  a  negro,  Indian,  and  of  all 
persons  of  mixed  blood,  descended  from  negro  or  Indian  ances- 
tors to  the  fourth  generation  inclusive,  (though  one  ancestor  of 
each  generation  may  have  been  a  white  person,)  whether  the 
person  whose  evidence  is  offered  be  bond  or  free,  shall  be 
admissible,  and  the  witnesses  competent,  subject,  nevertheless, 
to  be  excluded  upon  any  other  grounds  of  incompetency  which 
may  exist. 

72.  On  the  trial  of  any  slave,  free  person  of  color,  or  Indian, 
the  judge  or  presiding  magistrate,  before  the  examination  of 
any  slave,  free  negro,  or  Indian,  shall  charge  such  to  declare 
the  truth. 

73.  If  any  slave,  free  negro,  or  Indian,  upon  any  trial  where 
as?ree'men!--R.  he  may  be  examined  as  a  witness,  shall  commit  wilful  and 
S.  c.iii,  s.  52.  corrupt  perjury,  he  shall,  upon  conviction,  be  punished  as  a 

freeman  convicted  of  a  like  offence. 

74.  In  every  case  where  the  whole,  or  part  of  the  punish- 
ment prescribed  by  statute  for  any  offence,  shall  be  imprison- 
ment for  a  time  so  long  as  thirty  days  at  least,  and  there  shall 
be  provided  by  the  statute  no  difference  in  the  punishment 
between  a  white  person  and  a  free  negro,  the  court  may  sen- 
tence the  free  negro  to  be  both  whipped  and  im])risoned ;  but 
in  such  case  tlie  time  of  imprisonment,  within  the  limit  pre- 
scribed, shall  be  in  the  discretion  of  the  court. 

75.  When  a  free  negi-o  shall  be  convicted  of  any  offence 
against  the  criminal  laws  of  the  State,  and  sentenced  to  pay  a 
fine,  and  it  shall  appear  to  the  satisfaction  of  the  court,  that  he 
is  unable  to  pay  the  fine  imposed,  (which  shall  in  all  cases  be 
equal  to  the  costs,)  the  court  shall  direct  the  sheriff'  to  hire  out 
such  free  negro  publicly  at  the  court  house  door,  during  the 
term  of  court,  to  any  person  who  will  pay  the  fine,  or  the 


Slaves,  &c., 
■when  witness- 
es, to  be 
warned,  &c. — 
E.  8.0.  Ill, 
s.  51. 
Guilty  of  per- 


Free  negroes  i 
certain  cases, 
"wliipped,  in- 
stead of  im- 
prisoned. 


May  be  hired 
out  for  fines. 


Chap.  107.]       sl.wes  and  free  negroes.  579 

greatest  part  thereof,  for  the  services  of  the  free  negro  for  the 
shortest  space  of  time,  not  exceeding  five  years;  and  the  hirer  Hirer's  author- 
shall  have  all  such  power  and  authority  over,  and  the  same 'f/-— ^- «■  <•• 

II  •  r  \        p  J.  lil,S.OO,07,oO. 

rights  to  control  the  services  of,  such  tree  negro,  as  masters 
have  over  free  negro  apprentices. 

76.  Whenever  a  free  negro  shall  be  charged  with  the  main-  Charged  with 
tenaiice  of  any  bastard  child,  and  h'e  shall  be  unable  to  give  S';^;'^''!";'^ ''^ 
the  bond  required  in  such  case,  the  court  may  order  him  to  be  support  the 
hired  out,  in  the  same  manner  and  under  the  same  rules  as  are  *^  ''  ' 
prescribed  in  the   preceding  section,  for  such  sum  as  the  court 

shall  adjudge  to  be  proper  for  the  maintenance  of  the  child. 

77.  When  any  free  negro,  for  any  fine  imposed  on  him  for  if  the  term  of 
an  oftence,  or  for  a  sum  of  money  adjudged  against  him  in  !;"■« '^<''o"g.'« 

'  ici  c   d  vears,  line, 

case  of  bastardy,  shall  be  hired  out  for  the  space  oi  live  years,  &c.,"to  bedis- 
the  whole  fine  or  sum  of  money  shall  be  discharged ;  and  the  charged. 
sheriff,  after  deducting  five  per  centum  on  the  sums  collected 
for  any  hiring,  shall  account  for  the  residue,  as  for  other  fines ; 
and  in  these  cases,  the  officers  shall  have  full  fees.     Provided  Absconding  to 
ahcai/s,  that  if  any  free  negro,  who  may  be  hired  out  for  his  =?^^^<=  double 
fine,  or  in  pursuance  of  section  seventy-five  of  this   chapter, 
shall  abscond  or  leave  the  service  of  his  hirer,  before  the  expira- 
tion of  his  time  of  hiring,  such  free  negro  shall  be  bound  to 
serve  double  the  deficient  time.     And  provided,  further,  that  nwer  to  enter 
the  person  hiring  such  free  negro  shall,  in  open  court,  enter  '^"'^p"°°fggj 
into  recognizance  to  the  State,  with  two  able  sureties,  in  such  clothe,  &c.    ' 
sum  as   the  court  shall  direct,  that  the  free  negro,  during  the 
time  of  service,  shall  be  furnished  with   good  and  sufficient 
lodging,  clothing,   medicine,  and  food  ;  shall  be   treated  with 
humanity,  and   be   employed  in  some  useful  and  industrious 
occupation  ;  shall  not  be  removed  from  the  county,  during  the  N^t  („  ,jg  j.^_ 
term  of  service,  and  shall  be  produced  to  the  county  court  at  yj"™^""';  "*^ 
the  expiration  thereof,  or  whenever,  and  as  often  as,  the  court 
may  order.     On  breach  of  the  recognizance,  the  prosecuting  on  breach  of 
officer  of  the  court,  which  may  have  directed  the  hiring,  shall  J','j™i^"^^4j'^"-'' 
enforce  and  collect  the  recognizance  for  the  benefit  of  the  free  from  service, 
negro,  who,  on  such  breach  thereof  being  established,  shall  be  f,";~'^c/'  '^' 
discharged  of  all  further  service.     And  if  any  hirer  shall  fail  to      '  "    ' 
comply  with  any  of  the  duties  hereby  imposed  on  him,  he  shall 
be  deemed  guilty  of  a  misdemeanor,  and  may  be  prosecuted 
therefor  in  the  county  where  the  hiring  took  place. 

78.  It  shall  not  be  lawful  for  any  slave  to  be  transported  on  slaves  not  to 
any  railroad,  steamboat,  or  other  vessel  navigating  the  waters  be  carried  on 

.•',_,  '  '      ,  ,  .,t         ,  ^        .      .          .      ships,  railroads, 

of  the  State,  or  on  any  stage-coach,  without  a  permission  in  coaches,  &c. 
writing  from  the  owner,  under  the  penalty  of  five  hundred  dol- 
lars ;  one  half  to  the  informer  and  one  half  to  the  State,  to  be 
recovered  in  the  name  of  the  State  against  •such  railroad  com- 
pany, the  owner  or  captain  of  the  boat  or  vessel,  or  the  owner 
of  such  coach,  as  the  case  may  be.  And  if  any  slave  shall 
escape  from  his  owner,  by  means  of  such  transportation,  the 
owner  may  recover  his  value  from  the  said  company,  owner,  or 
captain  of  the  boat,  or  owner  of  the  coach,  so  transporting  the 


580  STATUTES,  REPEAL,  AND   CONSTRUCTION   OF.     [ChAP.  108. 

tid  b^^  w™iv  ^'''^^^'  (^®  ^^^  ^^®®  ™^y  ^'^')  ^y  action  on  the  case.  Provided, 
emng'^mth™^'  howcver,  that  this  section  shall  not  extend  to  the  case  of  any 
iMoT'ss^s'"  ^'^^^  travelling  with  his  master,  or  with  the  agent  of  his 
1,2,8?"     '^'    master,  or  as  the  servant  or  attendant  of  any  white  person, 

bond  fide  employed  for  that  purpose. 
Who  shall  be         79.    All  free  persons  descended  from  negro  ancestors,  to  the 
ne^oel-R.  S.  fourth  generation  inclusive,  though  one  ancestor  of  each  gen- 
c.  Ill,  8.74.      eration  may  have  been  a  white  person,  shall  be  deemed  free 

negroes  and  persons  of  mixed  blood. 


Sect.  28.  13  Ire.  1B4;  5  lb.  221. 

Sect.  30.  10  Ire.  536. 

Sect.  32.  13  Ire.  373. 

Sect.  33.  13  Ire.  373;  8  lb.  48. 

Sect.  44.  2  D.  &  B.  297;  3  Dev.  329. 

Sect.  45.  Before  1830,  Bus.  60;  12  Ire.  41;  11  lb.  449;  9  lb.  168;  3  D.  &  B.  88-  1 
lb.  3S4.  ' 

Sect.  46.  4  Ire.  Eq.  15;  6  lb.  15;  8  lb.  32;  7  lb.  201;  8  lb.  253;  lb.  70;  8  Ire.  66; 
1  Jones,  Eq.  1 ;  lb.  35 ;  1  Ire.  Eq.  436.     WiU  made  in  Vtroinia,  1  Ire.  109,  3  lb.  224. 

Sect.  49.  3  D.  &  B.  38.  ' 

Sect.  54.  2  Jones,  52. 

Sect.  66.  8  Ire.  256. 

Sect.  69.  Bus.  6. 

Sect.  76.  Status  of  free  negroes,  4  D.  &  B.  25,  5  Ire.  250. 

Sect.  77.  8  Ire.  622. 


CHAPTER    108. 

STATUTES,  REPEAL,  AND  CONSTRUCTION  OF. 


Section 

1.  Repeal  of  statutes  not  to  affect  suits. 

2.  Rules  for  construing  statutes. 

(1.)  Singular  and  plural  number,  mas- 
culine gender,  &c. 

(2.)  Authority  of  public  officers,  &c., 
exercised  by  majorities,  unless,  &c. 

(3.)  "Month"  ivnd  "year." 


Section 

(4.)  "  Oath"  and  "sworn." 

(5.)  "  Person." 

(6.)  "  Preceding  "  and  "  following." 

(7.)  "  Seal." 

(8.)  "  Will." 

(9.)  "  Written"  and  "  in  writing." 

(10.)  "  State  "  and  "  United  States." 


Repeal  of  Stat-       1.   TiiE  repeal  of  a  statute  shall  not  affect  any  suit  brought 

utes  not  toat-,f  ,  '         ,-  /-/..  .  ■■■'„         ,  " 

feet  suits.— R.    betore  the  repeal,  tor  any  forfeitures  incurred,  or  for  the  fccov- 

S,  c.  100,  s.  1.    ery  of  any  rights  accruing  under  such  statute. 

Rules  for  con-       2.  In  the   construction   of  all   statutes,   the  following  rules 

struing  Stat-         v     1 1   u        i  i  ^  i  ,  •  >  >  ,       ,  ^  . 

utcs.  shall  be  observed,  unless  such  construction  would  be  inconsis- 

tent with  the  manifest  intent  of  the  General  Assembly,  or  re- 
pugnant to  the  context  of  the  same  statute,  that  is  to  say  :  — 
^S'm.mber       ^^'^  Evcry  word,  importing  the  singular  number  only,  may 
malcuiinc"ynl  cxtcnd  and   be  applied  to  several  persons  or  things,  as  well  as 
der,&c.  to  one  person  or  thing;  and  evcry  word  importing  the  plural 

number  only,  may  extend   and   be    applied  to   one   person   or 
thing,  as  well  as  to  several  persons  or  things  ;  and  every  word 


Chap.  108.]  statutes,  repe.4.l,  and  construction  of. 


581 


'sworn. ' 


importing  the  masculine  gender  only,  may  extend  and  be  ap- 
plied to  females  as  well  as  to  males. 

(2.)   All  words  purporting  to  give  a  joint  authority  to  three  ^^;'^\'j°''^'4°4_ 
or  more  public  officers  or  other  persons,  shall  be  construed  as  &c.,  exercised 
giving  such   authority  to  a  majority   of  such   officers  or  other  J;^,™jJ°4'.'^'' 
persons,  unless  it  shall  be  otherwise  expressly  declared  in  the    ""'''" 
law  giving  the  authority. 

(3.)   The  word  "  month"  shall  be  construed  to  mean  a  cal-  "^™*"''"'i 
endar   month,    unless    otherwise    expressed ;    and    the   word 
"year"  a  calendar  year,  unless  otherwise  expressed;  and  the 
word  "  year "  alone    shall    be    equivalent   to    the    expression 
"  year  of  our  Lord." 

(4.)   The  word  "  oath  "  shall  be  construed  to  include  «af- "0»tii"'i"<i 
firmation,"  in  all  cases,  where  by  law  an  affirmation  may  be 
substituted   for    an    oath,    and    in   the    like    cases,  the   word 
"  sworn  "  shall  be  construed  to  include  the  word  "  affirm." 

(5.)   The  word  "  person "   may  extend   and   be   applied  to  "  Person." 
bodies  politic  and  corporate,  as  well  as  to  individuals. 

(6.)   The  words  "  preceding  "  and  "  following,"  when  used  !^„^j  u^jj"^" 
by  way  of  reference  to  any  section  of  these  revised  statutes,  ing.- 
shall  be  construed  to  mean  the  section  next  preceding  or  next 
following  that  in  which  such  reference  is  made ;  unless  when 
some  other  section  is  expressly  designated  in  such  reference. 

(7.)  In  all  cases  in  which  the  seal  of  any  court  or  public  "  S^'^'-" 
office  shall  be  required  by  law  to  be  affixed  to  any  paper  is- 
suing from  such  court  or  office,  the  word  "  seal "  shall  be  con- 
strued to  include  an  impression  of  such  official  seal,  made 
upon  the  paper  alone,  as  well  as  an  impression  made  by  means 
of  a  wafer  or  of  wax  affixed  thereto. 

(8.)   The  term  "  will  "  shall  be  construed  to  include  codicils  "  Will." 
as  well  as  wills. 

(9.)   The  words  "written"  and  "in  writing,"  maybe  co""  1^  J'!"'"^rit- 
strued  to  include  printing,  engraving,  lithographing,  and  any  lug." 
other  mode  of  representing  words  and  letters ;  provided,  how- 
ever, that  in  all  cases  where  a  written  signature  is  required  by 
law,  the  same  shall  be  in  a  proper  handwriting,  or  in  a  proper 
mark. 

(10.)   The  word  "  State,"  when  applied  to  the  different  parts  ||  smte"  and 
of  the  United  States,  shall  be  construed  to  extend  to  and  in-  states." 
elude  the   District  of  Columbia  and  the   several  territories  so 
called ;  and  the  words  "  United  States  "  shall  be  construed  to 
include  the  said  district  and  territories. 

49* 


582 


STRAYS. 


[Chap.  109. 


CHAPTER    109, 


STRAYS. 


E  angers  ap- 
pointed by 
county  courts. 
— R.  S.  c.  112, 
s.  1. 


Information  of 
strays  made  to 
ranger. 


Stray  valued. 


Ranger  to  keep 
a  book. 
To  advertise 
strays.— B.  S. 
c.  112,  s.  2. 


Section 

1.  Rangers  appointed  by  county  courts. 

2.  Information  of  strays  made  to  ranger. 

Stray  valued.  Ranger  to  keep  a  book. 
To  advertise  strays. 

3.  Reward  to  taker-up. 

4.  Property    not    proved,  to  belong  to 

taker-up,  after  one  year.  May  be 
reclaimed.  Expense  of  keeping  stray, 
how  ascertained. 

5.  Not  claimed  within  one  year,  two  thirds 

of  its  value  paid  to  county  trustee. 
Owner  may  reclaim  of  county. 

6.  Taker-up  to  give  bond,  if  value  ex- 

ceeds four  dollars. 


Section 

7.  Not  answerable  for  its  death. 

8.  Freeholders   only  shall  take  up  and 

enter;  but  any  may  take  up  and  re- 
turn stray. 

9.  Ranger  to  administer  oaths. 

10.  To  make  returns  to  county  court. 

11.  Books  of,  may  be  inspected. 

12.  County  trustee  to  collect  moneys  ac- 

cruing under  this  chapter. 

13.  Penalty  on  rangers  not  paying. 

14.  Duty  of  taker-up,  when  stray  dies,  or 

is  reclaimed. 

15.  Penalties,  &c.,  to  belong  to  county. 


1.  The  court  of  pleas  and  quarter-sessions,  in  each  county, 
seven  justices  being  present,  shall  appoint  one  or  more  rangers 
for  their  county,  who  shall  hold  their  offices  during  good  be- 
havior; and  no  person  shall  be  deemed  duly  elected  without 
receiving  a  majority  of  the  votes. 

2.  Every  freeholder,  who  shall  take  up  any  sti-ay  horse, 
mare,  gelding,  colt,  mule,  ass,  or  jenny,  neat  cattle,  hog,  or 
sheep,  shall,  under  the  penalty  of  twenty  dollars  for  failing  so 
to  do,  within  ten  days  after  taking  up  such  stray,  (the  owner 
of  such  stray  being  to  him  unknown,)  make  information  on 
oath  before  the  ranger  of  the  county,  of  the  marks,  brands, 
and  color  of  the  stray,  and  that  the  same  was  taken  up  at  his 
plantation  or  place  of  abode,  and  that  the  marks  or  brands 
have  not  been  altered  or  defaced  by  the  means  or  knowledge 
of  such  taker-up ;  whereupon  such  ranger  shall  issue  his  sum- 
mons to  any  two  freeholders  of  the  neighborhood,  who,  after 
taking  before  the  ranger  the  oath  prescribed  for  the  faithful 
and  impartial  discharge  of  their  duty,  shall  view  and  appraise 
such  stray,  and  make  return  thereof  to  the  ranger,  under  their 
hands ;  which  appraisement,  with  a  particular  and  exact  de- 
scription* of  the  marlcs,  brands,  age,  and  color,  as  near  as  can 
be  ascertained,  of  such  stray,  together  with  the  time  of  taking 
up,  and  place  of  abode  of  the  person  taking  it  up,  shall,  by 
such  ranger,  be  entered  in  a  book  kept  for  that  purpose ;  and 
he  shall  immediately  thereafter,  and  also  during  the  sitting  of 
the  next  succeeding  court  of  the  county,  put  up  an  advertise- 
ment at  the  court  house,  in  the  most  public  place,  describing 
therein  the  kind,  marks,  brand,  and  color  of  the  stray;  and  if 
the  stray  shall  be  a  horse,  mare,  gelding,  colt,  mule,  ass,  or 
jenny,  the  ranger  shall  likewi.se  without  delay,  under  a  penalty 
of  four  dollars,  cause  an  advertisement  to  be  published,  at  least 


Chap.  109.]  strays.  583 

two  weeks,  in  a  paper  printed  in  or  nearest  the  county,  con- 
taining an  accurate  description  of  the  stray  as  entered  upon 
his  book,  the  value  as  appraised,  and  the  name  and  place  of 
the  abode  of  the  taker-up  ;  and  for  the  purpose  of  making  such 
advertisement,  the  taker-up  shall  pay  to  the  ranger  one  dollar, 
which  the  owner  shall  pay  to  the  taker-up,  at  the  time  of  re- 
ceiving his  stray,  or  it  shall  be  allowed  him  in  his  settlement 
with  the  county  trustee,  as  hereinafter  directed. 

3.  The   person   taking   any   stray,   for  his   trouble   and  ex-  Reward  to 
penses,  may  demand  and  receive  oi  the  owner  one  dollar  lor  s.  c.  112,  s.  3. 
each  horse,  mare,  gelding,  colt,  or  mule,  ass,  or  jenny,  —  fifty 

cents  for  each  head  of  cattle,  —  and  fifteen  cents  for  each  hog 
and  sheep. 

4.  The  property  of  every  such  stray,  twelve  months  after  Troperty  not 
such  appraisement,  (the  property  not  being  proved  by  the  [J^g  to' taker- 
owner  thereof,)  shall  be  vested  in  the  person  taking  up  the  "P,  after  one 
same.     Provided,  nevertheless,  that  the  former  owner  of  any  •* 

such  stray,  at  any  time  within  twelve  months  after  such  ap- 
praisement, on  proving  his  property  before  the  ranger,  by  his 
own  oath  or  otherwise,  may  demand  and  recover  such  stray.  May  be  re- 
or  the  valuation  thereof,  first  paying  the  ranger's  fees,  and  tlie  c'-'i^eJ- 
reward  for  taking  up  the  stray.     Provided  also,  that  where  the  Expense  of 
taker-up  shall  have  been  at  any  expense  for  keeping  and  main-  Jiow'^asce^r-''^'' 
taining  such  stray,  he  may  retain  the  same,  until  the  owner  or  tained.— K.  S. 
claimer  shall  pay  all  such  expense,  to  be  ascertained  in  the  fol-  °'  ^^^'  ^"  *' 
lowing  manner,  namely :  the  taker-up  shall  obtain  from  the 
ranger,  or  some  justice  of  the  peace,  a  warrant  empowering 
three  freeholders  by  the  ranger  or  justice  to  be  named,  to  de- 
clare on  oath  upon  view  of  the  stray,  and  examination  of  wit- 
nesses if  necessary,  how  much  the  taker-up  ought  to  have  for 
keeping  the  stray ;  and  such  sum  as  shall  by  the  said  freehold- 
ers or  any  two  of  them,  be  declared,  the  taker-up  may  demand 
and  receive,  before  the  owner  shall  take  the  stray  out  of  his 
possession. 

5.  After  the  expiration  of  twelve  months,  every  person  tak-  stray  not 
ing  up  any  stray,  (no  property  being  proved  by  the  owner,)  a'ye"rftwo""° 
shall  account  for  and  pay  to  the  county  trustee 'two  thirds  of  thirds  of  its 
the  appraised  value,  after  deducting  the  ranger's  fees,  the  costs  co."rustee.'° 
for  advertising,  and  the  reward  for  taking  up  the  same ;  and 

in    case    any    person  taking   up  a   stray  shall  neglect  to  ac- 
count with  the  trustee,  the  trustee  shall  commence  suit  for  the 
same ;  and  the  person  failing  shall  also  forfeit  and  pay  double 
the  appraised  value  of  the  stray.     Provided,  nevertheless,  that  Owner  may  re- 
if,  at  any  time,  the  owner  shall  prove  his  property  before  the  ciann^of^comi- 
county  court  by  the  oath  of  one  or  more  indifierent  witnesses,  112,  s.  5. 
the  court  shall  direct  the  county  trustee  to  pay  to  the  owner 
the  net  sura  of  money  which  the  ranger  may  have  paid  to  the 
trustee,  after  deducting  the  trustee's  commissions. 

6.  Any  person  taking  up   a  stray  shall  first  give  bond,  in  Taker-up  to 
double  the  sum,  which  iflay  be  deemed  to  be  the  value  of  the  yl,^iJ',e''of  stray 
stray,  with   approved   sureties,  to  one  of  the  rangers  of  the  exceeds  foiir ^ 


584  STRAYS.  [Chap.  109. 

dollars.— R.  s.  couiity,  for  his  faithful  compliance  with  the  duties  enjoined 

"'^'   ■       by  this  chapter,  by  delivering  up  the  stray  to  the  owner,  if 

claimed  in  due  time,  or  otherwise  accounting  with  the  county 

trustee,  as  above  directed.     Provided,  that  if  the  sum  which 

may  be  deemed  to  be  the  value  of  such  stray  shall  not  exceed 

four  dollars,  no  bond  shall  be  required. 

ftfits  toth-      '^'  ^^  within  twelve  months  after  the  appraisement  of  any 

E.  S.  c.  112,'     stray  and  entry  thereof  made  with  the  ranger,  it  should  die, 

^-  '^-  the  taker-up  shall  not  be  answerable,  unless  it  may  appear  to 

have  died  by  ill  usage  and  abuse. 
onTyihaUteke      ^^  ^^  '^."^  person,  not  being  a  freeholder,  shall  take  up  any 
up  and  enter;    stray,  or  if  any  freeholder  shall  take  up  any  stray  at  any  other 

teWpaTi^re-  P^^°^  ^'^^"  ^"  '^^^  °^^'"  ^^"'^i  '""  ^'^^"  ™^'^^  "^^  °^  ^"7  «tray 

turn  stray.— R.  before  the  same  shall  be  appraised,  he  shall,  for  every  such 

S.  c.  112,  s.  8.   offence,  forfeit  and  pay  ten  dollars,  and  be  further  liable  to 

the  action  of  the  party  grieved.    Provided,  nevertheless,  that 

nothing  herein  contained  shall  prevent  any  person  from  taking 

up  any  stray  of  any  kind,  and  carrying  the  same  immediately 

to  the  owner  thereof. 

mtnfster 'oaths  .    ^.'  '^^^^  danger  may  administer  the  oath,  in  all  cases,  where 

— R.  S.  0. 112,"  it  is  required  to  be  taken  before  him,  under  the  provisions  of 

s-  s-  this  chapter. 

talis tocount      •  ^^'  ^^^^1  ranger  shall  make  return  of  the  strays  entered,  to 

cmrt.-R?™Z  his  county  court,  which  shall  happen  after  the  first  day  of  Feb- 

112,  s.  10.         ruary  in  every  year,  under  the  penalty  of  twenty  dollars  ;  of 

which  return  the  clerk  of  the  court  shall  make  and  deliver  a 

copy  to  the  county  trustee,  to  the  end  that  he  may  proceed  to 

the  collection  of  the  money  due. 

be^nspectS!—      ^^'  ^°^  *'^®  ™°'"'^  speedy  recovery  of  strays,  any  person  may 

E.  S.  c.  112,'     search  the  entry  books,  for  any  information  he  may  want,  first 

s- 11-  paying  to  the  ranger  the  prescribed  fee  therefor. 

raVcTmoVevs      •'"^'  '^'^'^  trustee  in  each  county  shall  collect  all  sums  that 

accruing  under  may  be  due  for  any  stray  entered,  under  the  same  rules  as  he 

e'Vc''ii"'~  '^°'^'^^^^  ^"y  other  moneys  due  him  ;  and  on  all  such  collec- 

s.'ia!  '     "'      tions  he  shall  be  entitled  to  receive  si.K  per  centum.     And  if 

any  person,   entering    strays,   shall  fail   to   account  for   such 

moneys,  the  trustee  shall  sue  for  the  same. 

rangerf  for  not       ^'^'  Whenever  any  ranger  or  his  deputy  has  received  any 

Baying  over.—  money,  which  ought  to  have  been  paid  by  the  taker-up  to  the 

k  S.  c.  112,  s.  trustee,  the  trustee  shall  call  on  the  ranger,  or  his  deputy,  for 

payment;  and,  on  failure  to  settle  and  pay  as  herein  directed, 

he  shall  forfeit  two  hundred  dollars,  and  be  further  liable  to 

the  suit  of  the  trustee  for  such  sums,  as  iiave  been  paid  by  the 

taker-up  of  strays,  over  and  above  the  ranger's  fee. 

uptvhL'"stray      ^^'  ^"^^^  person  taking  up  a  stray,  afterwards  reclaimed 

die's,  or  is  re-    by  the  owner,  or  dying    as   aforesaid,  shall    produce    to    the 

s"'c"u2l^'l4  '■^"S'^^  "^  the  county  a  certificate  of  such  stray  being  reclaimed 

or  dying,   from    some   justice   of   his   county,   witiiin    twelve 

months  after  entering  the  stray ;  which  certificate  the  ranger 
shall  note  in  his  book  and  iile  "in  Iiis*oftice,  and  shall  give  a 
receipt  for  the  same,  specifying  the  day  and  date  of  the  entry 


Chap.  110.]  surety  and  principal. 


585 


of  such  strays.  And  in  case  any  taker-up  shall  fail  to  produce 
a  certificate,  when  demanded,  he  shall  be  subject  to  the  pay- 
ment of  all  costs,  which  may  accrue  in  consequence  of  any 
suit  brought  against  him,  as  fully  as  if  no  claim  had  been 
made,  or  death  happened. 

15.  Every  penalty  incurred  by  the  violation  of  any  of  the  ^|™i*i'f„^°p. 
provisions  of  this  chapter,  shall  be  recovered  by  the  county  ter,  to  belong 
trustee,  in  the  name  of  the  State,  for  the  use  of  the  county.        g.  c?n2f  r?5. 


CHAPTER    110, 


SURETY  AND  PRINCIPAL. 


Section 

1.  Summary  remedy  for  surety  against 

principal. 

2.  Surety  may  sue  cosurety  for  ratable 

part  of  debt  paid  for  principal. 

3.  May  dissent  from  stay  of  execution 


Section 

—  then  not  liable  to  surety  for  the 
stay.  Officer,  how  to  collect  in  such 
case. 
4.  Surety,  paying  debt  of  deceased  prin- 
cipal, to  have  priority  as  the  credi- 
tor had,  against  the  estate. 


1.  Ant  person,  who  may  have   paid  money  for  and   on  Summary  rem- 
account  of  those  for  whom  he  became  surety,  upon  producing  f^.^^^  ^[^^7 
to  the  county  court,  or  any  justice  of  the  peace  having  juris- pal.— R.S.c. 
diction  of  the  sum,  a  receipt,  and  showing  that  an  execution  "^'  ^-  ^■ 
has  issued  and  he   has  satisfied  the  same,  and  making  it  ap- 
pear by  indifferent  testimony,  that  he  has  laid  out  and  ex- 
pended any  sum  of  money,  as  the  surety  of  such  person,  may 

move  the  court  or  justice  of  the  peace,  as  the  case  may  be,  for 
judgment  against  his  principal,  for  the  amount  which  he  has 
actually  paid;  a  citation  having  previously  issued  against 
the  principal  to  show  cause  why  execution  should  not  be 
awarded  :  and  should  not  the  principal  show  sufficient  cause, 
the  court  or  justice  shall  award  execution  against  the  estate  of 
the  principal. 

2.  Where  there  are  two  or  more  sureties  for  the  perform-  Surety maysue 
ance  of  a  contract,  and  one  or  more  of  them  may  have  been  rSfe  part  of 
compelled  to  perform  and  satisfy  the  same,  or  any  part  thereof,  debt  paid^r 
and  the  principal  shall  be  insolvent,  or  out  of  the  State,  such  s?cTi3,'r2'. 
surety  may  have  and  maintain  an  action  on  the  case  against 

every  other  surety,  for  a  just  and  ratable  proportion  of  the 
sum,  which  may  have  been  paid  as  aforesaid,  whether  of  prin- 
cipal, interest,  or  cost. 

3.  Whenever    any   judgment    shall   be    obtained   before  a  May  dissent 
justice,  against  a  principal  and  his  surety,  and  the   principal  J°"^„'|g^°,,g„ 
debtor    shall    desire    to    stay  the  execution  thereon,   but  the  not  i>c  liable  to 
surety  is  unwilling  that  such  stay  shall  be  had,  the  surety  may  l™^\^ 
cause  his  dissent  thereto  to  be  entered  by  the  justice,  which 

shall  absolve  him  from  all  liability  to  the  surety,  who   may 


586 


Officer,  how  to 
collect  in  siicli 
case. — R.  S.  c. 
113,  s.  3. 


Surety,  paying 
(leW  of  dee'd 

{)rincipal,  to 
lave  priority  as 
the  creditor 
had,  against  tlie 
estate.— R.  S. 
c.  113,  s.  4. 


TOWNS.  [Chap.  111. 

stay  the  same.  And  the  constable  or  other  officer,  who  may- 
have  the  collection  of  the  debt,  shall  make  the  money  out  of 
the  property  of  the  principal  debtor,  and  that  of  the  snrety  for 
the  stay  of  execution,  if  he  can,  before  he  shall  sell  tlie  prop- 
erty of  the  surety  before  judgment. 

4.  Whenever  a  surety,  or  his  representative,  shall  pay  the 
debt  of  his  deceased  principal,  the  claim  thus  accruing  shall 
have  such  priority  in  the  administration  of  the  assets  of  the 
principal,  as  had  the  debt  before  its  payment. 


Sect.  1.  Sureties :  who  are,  4  D.  &  B.  458,  lb.  404,  lb.  537.  Relation,  to  creditor,  1  Ire. 
216,  lb.  389,  1  D.  &  B.  44  ;  to  principal;  cannot  sue  piincipal  in  tort,  11  Ire.  294  ;  must 
pay  before  siiinff,  12  Ire.  243,  7  Ire.  353,  1  lb.  286,  3  Dev.  253,  4  I).  &  B.  458,  2  lb.  460, 
1  lb.  437  ;  demand  necessary,  4  Dev.  300.  Payment  by  surety:  effect  of,  3  Dev.  360,  lb. 
237, 1  D.  &  B.  437.  How  sureties  discharged,  4  Dev.  529,  1  Ire.  216,  5  Ire.  Eq.  91,  lb. 
369. 

Sect.  2.  Cosureties,  8  Ire.  56,  lb.  286,  9  lb.  10,  4  lb.  377,  lb.  83, 1  Joues,  Eq.  313,  6 
Ire.  Eq.  115. 

Sect.  4.  Bus.  300. 


CHAPTER    111. 


TOWNS. 


Section 

1.  Incorporated  towns  may  elect  com- 

missioners, who  shall  be  a  body  cor- 
porate.   How  styled. 

2.  Qualification  of  commissioners. 

3.  Of  voters. 

4.  First  election,  when  held,  and  number 

of  commissioners;  when  afterward.', 
and  how  conducted. 

5.  Inspectors  of  elections;  their  duty. 

6.  Election  tied,  decided  by  lot. 

7.  Number  of  commissioners,  and  time 

of  election  may  be  changed. 

8.  On  change  of  time,  or  failure  to  elect, 

officers  in  to  hold,  &c. 

9.  Vacancy,  how  filled. 

10.  Mayor  maybe  elected.    Tie  vote,  how 

determined.  Terra  of  office.  Va- 
cancy, how  filled.  Shall  preside  at 
meetings. 

11.  Mayor  shall  take  oaths.     Shall  have 

judicial  powers.  Their  extent.  Ap- 
peal lies  from  his  judgment. 

12.  Commissioners  to  take  oath.    Their 

powers  to  make  by-laws,  &c. 

13.  May  lay  tax — on  wliat.   Appoint  con- 

stables and  otlier  oflicers;  fix  their 
compensation  and  take  bonds. 

14.  Markets,  may  establish  and  regulate. 

15.  Nuisances,  abate. 


Section 

16.  Streets  and  bridges,  keep  in  repair. 

Improvements  make  by  a.ssessment 
of  labor,  &c.  Citizens  exempt  from 
working  ou  roads.  Hay  appoint 
overseer  of  streets.  Citizens  liable 
for  neglect,  as  road  hands.  Town 
patrol. 

17.  By-laws,  may  enforce  by  penalties. 

18.  B.aker's  bread,  its  quality  and  weight 

regulate. 

19.  List  of  taxables,  to  be  taken  by  mayor. 

Slaves  of  non-residents,  who  to  list. 
Double  tax,  when  paid.  Assessors 
of  real  estate  appointed  —  their  oath 
and  duty. 

20.  Town  constables  —  their  oath,  power, 

and  duties. 

21.  Shall  give  bond,  collect  tax,  and  have 

the  powers  of  sherilV  for  collection. 

22.  Officers  refusing  to  qualify,  to  pay 

S25. 

23.  Provisions  of  this  chapter  to  apply 

to  all  incorporated  towns,  unless,  &c. 

24.  Tax  on  dogs.    If  not  paid,  how  en- 

forced. 
26.  Animal  statement   of  taxes  and  ex- 
penditures, to  bo  published.    Pen- 
alty, iplOO. 


Chap.  111.]  towns.  587 

1.  Every  incorporated  town,  for  the  better  government  incorporated 
thereof,  may  annually  elect  by  ballot,  not  more  than  seven,  nor  S oraimis- 
less  than  three  commissioners,  who  shall,  they  and  their  sue-  sjoners,  who 

,  111  i  -ii  •  1-         shall  be  a  body 

cessors,  be  deemed  a  body  corporate  with  succession  during  corporate. 
the  corporate  existence  of  the  town,  and  shall  be  styled,  "  the  How  styled. 
commissioners  of  the  town  of  ,"   (the   same  being 

the  name  of  the  town  of  which  they  are  commissioners). 

2.  The  commissioners  shall  be  of  the  age  of   twenty-one  Qualification  of 

,,,  .-11       .,1.      ,1        1-      •!        ?ii       J.  J.1        commissioners. 

years,  shall  have  resided  within  the  limits  of  the  town  twelve 
months  next  preceding  the  day  of  election,  and  shall  on  the 
day  of  election  possess  a  freehold  or  a  leasehold  estate  for  at 
least  one  year,  in  real  estate  situate  within  the  town. 

3.  Every  free  white  man  of  the  age  of  twenty-one  years,  Ofvoters. 
being  a  native  or  naturalized  citizen  of  the  United  States,  who 

shall  have  resided  within  the  limits  of  the  town  six  months 
next  preceding  the  day  of  election,  and  shall  have  paid  all 
the  taxes  imposed  upon  him  by  the  commissioners,  which  are 
due  and  payable,  shall  be  entitled  to  vote  for  commissioners. 

4.  The  first  election  shall  be  held  on  such  day,  and  for  as  ,^.;^f„'"i|^5',f™  ^ 
many   commissioners,  as   the  county  court  of  the  county  in  number  of 
which  the  town  is  situate    may  think  proper  to   name,  and  ^vy™''fft(,"f''' 
annually  afterwards  on  the  same  day:  and  every  election  for  wards,  and  how 
commissioners  shall  be  held  under  the  inspection  of  such  per-  conducted. 
sons,  not  exceeding  three,  as  the  county  court  may  appoint ; 

who  shall  advertise  the  elections  at  three  public  places  in  the 
town,  ten  days  before  the  same  is  held.  And  in  case  the 
county  court  neglect  at  any  time  to  appoint  inspectors,  the 
sheriff  of  the  county  shall  summon  two  freeholders  of  the  town, 
who  with  him  shall  make  such  appointment. 

5.  The  inspectors   shall  be   sworn   by    some  justice  of  the  l^'P^ctors  of 
peace,  as  in  elections  for  members  of  the  General  Assembly,  duty.  '  ' 
and  they  shall  conduct  the   election  in  the  like  manner  and 

during  the  same  hours  of  the  day,  as  elections  for  members 
of  the  General  Assembly.  And,  at  the  close  of  the  poll,  shall 
declare  elected  such  persons  as  have  the  highest  number  of 
votes ;  and  they  shall,  within  ten  days,  notify  the  persons 
elected. 

6.  If  among  the  number  voted  for,  there  should  be  any  two  Election  tied, 

11  1  1  r         J,  J      -iu       decided  bj' lot. 

or  more  who  may  have  an  equal  number  ot  votes,  and  either 
would  be  duly  elected  but  for  the  equal  vote,  the  inspectors 
shall  determine  by  lot  the  election  between  them. 

7.  After  the  first  election  the  voters  of  the  town  may,  when-  Number  of 
ever  and  as   often  as  they  choose,  by  a  vote   at  the   time  of  ^l"™^^*^'""^''^ 
electing  commissioners,  and  due  notice  given  thereof  by  the  election  may 
commissioners  then   in   authority,  alter,  by  a  concurring  nia- '""^'"'"S'^'-'- 
jority  of  all  the  votes  cast,  the  day  of  election  and  the  num- 
ber of  commissioners,  and  fix  any  other  day  or  number,  so  that 

the  number  be  not  more  than  seven,  nor  less  than,  three ;  and 
the  elections  thereafter  shall  be  held  on  the  designated  day, 
and  thenceforth  the  number  of  commissioners  agreed  on  shall 
be  chosen. 


588 


On  cliansrc  of 
time,  or  inihirc 
to  elect,  officers 
in  to  hold,  &c. 


Vacancy,  how 
filled.    ■ 

Mayor  may  be 
elected. 


Tie  vote,  how 
determined. 


Term  of  office. 
Vacancy,  how 
filled. 

Shall  preside 
at  meetiuRs. 


Mayor  shall 
take  oaths. 


Shall  have  ju- 
dicial powers. 
Their  extent. 


Appeal  allow- 
ed from  his 
judgment. 


Commissioners 
to  take  oath. 

Their  powers 
to  make  by- 
laws, &c. 


May  lay  lax, 
on  what. 


TOWNS.  [Chap.  111. 

8.  Whenever  the  day  of  election  shall  be  altered,  the  offi- 
cers of  the  corporation  elected  or  ap]3ointed  before  that  day, 
shall  hold  their  places  till  the  day  of  election,  and  until  other 
officers  shall  be  appointed  and  qualified.  And  they  shall  hold 
their  offices  in  like  manner,  when  there  is  any  failure  to  make 
the  annual  election. 

9.  In  case  of  a  vacancy  after  election,  in  the  office  of  com- 
missioner, the  others  may  fill  it  until  the  next  election. 

10.  In  like  manner,  and  at  the  same  time  when  commis- 
sioners are  elected,  the  voters  may  by  ballot,  under  the  inspec- 
tion of  the  same  persons  and  under  the  same  rules  and  regula- 
tions, elect  a  mayor  of  the  town  ;  and  the  person  having  the 
highest  number  of  votes,  shall  be  declared  elected.  If,  among 
the  number  voted  foi',  there  should  be  any  two  or  more  who 
may  have  an  equal  number  of  votes,  and  either  would  be 
elected  but  for  the  equal  vote,  the  election  shall  be  determined 
as  in  the  case  of  commissioners  ;  and  he  shall  be  notified  and 
hold  his  office  for  the  same  term  as  the  commissioners ;  and 
in  case  of  a  vacancy  in  the  office,  the  commissioners  may  fill 
the  same.  The  mayor  shall  preside  at  the  meetings  of  the 
commissioners,  but  shall  have  no  vote  except  in  case  of  a  tie; 
and  in  the  event  of  his  absence  or  sickness,  the  board  of  com- 
missioners may  appoint  one  of  their  number,  j>/'o  tempore,  to 
exercise  his  duties. 

11.  The  mayor,  before  some  justice  of  the  peace,  shall  take 
the  oaths  prescribed  for  public  officers,  and  an  oath  that  he 
will  faithfully  and  impartially  discharge  the  duties  imposed 
upon  him  by  law.  As  a  peace-officer,  he  shall  have  within 
the  limits  of  the  town,  all  the  powers  of  a  justice  of  the  peace  ; 
and  as  a  judicial  officer,  shall  have  within  the  same,  all  the 
power,  jurisdiction,  and  authority  of  a  justice  of  the  peace,  to 
issue  process  ;  to  hear  and  determine  all  cases  that  may  arise 
upon  the  ordinances  of  the  commissioners ;  to  enforce  penal- 
ties by  issuing  execution  upon  any  adjudged  violation  thereof, 
and  to  execute  the  laws  and  rules  that  may  be  made  and  pro- 
vided by  the  commissioners  for  the  government  and  regulation 
of  the  town.  Provided,  that,  in  all  cases,  any  person  dissatis- 
fied with  his  judgment  may  appeal  to  court,  as  in  case  of  a 
judgment  rendered  by  a  jitstice  of  the  peace. 

12.  The  commissioners  shall  take  an  oath  before  some  jus- 
tice of  the  peace,  that  they  will  faithfully  and  impartially  dis- 
charge the  duties  of  their  office.  They  shall  have  power  to 
make  such  by-laws,  rules,  and  regulations  for  the  better  gov- 
ernment of  the  town,  as  they  may  deem  necessary.  Provided 
the  same  be  not  inconsistent  with  the  provisions  of  this  chap- 
ter, or  the  laws  of  the  land. 

13.  Among  the  powers  hereby  conferred  on  them,  they  may, 
not  oftener  than  aimually,  lay  a  tax  on  real  estate  situate 
within  the  corporation  ;  on  such  polls  as  arc  taxed  by  the  Gen- 
eral Assembly  for  public  purposes  ;  on  all  persons,  (apotheca- 
ries and  druggists  excepted,)  retailing  or  selling  liquor  or  wines, 


Chap.  111.]  towns.  589 

of  the  measure  of  a  quart  or  less,  a  tax  not  exceeding  twenty- 
five  dollars ;  on  all  such   shows  and  exhibitions  for  reward  as 
are    taxed    by  the    General  Assembly ;  on  all    dogs ;  and    on 
swine,   horses,  and  cattle,  running  at  large  within  the  town. 
They  may  appoint  a  town   constable,  and  such  other  ofHcers  Appoint  con- 
and  agents,  as  may  be  necessary  to  enforce  their  by-laws  and  ol^je'roffiMrs ; 
regulations,  keep  their  records,  and  conduct  their  affairs  ;  may  fix  their  com- 
determine  the  amount  of  their  salaries  or  compensation  ;  and  [^''ke'bon'ds!'"'^ 
also  the  compensation   or  salary  of  the  mayor :  may  impose 
oaths  of  office  upon  them,  and  require  bonds  from  them  pay- 
able to  the  State,  in  proper  penalties  for  the  faithful  discharge 
of  their  duties. 

14.  They   may   establish  and  regulate  their  markets,  and  Mai-ket=,  mar 
prescribe  at  what  place,  within  the  corporation,  shall  be  sold  jgg'J,J,^te_  *" 
marketable  things;  in  what  manner,   whether  by   weight  or 
measure,  may  be  sold,  grain,  meal,  or  flour,  (if  the  flour  be  not 

packed  in  barrels,)  fodder,  hay,  or  oats  in  straw;  may  erect 
scales  for  the  purpose  of  weighing  the  same,  appoint  a  weigher, 
fix  his  fees,  and  direct  by  whom  they  shall  be  paid. 

15.  They  may  pass  laws  for  abating  or  preventing  nuisances  Xuisances, 
of  any  kind,  and  for  preserving  the  health  of  the  citizens. 

16.  They    shall    provide  for    keeping  in  proper   repair  the  Streets  and 
streets  and  bridges  in  the  town,  in  the  manner  and  to  the  ex-  in're'pai'r.  ^^^ 
tent  they  may  deem  best;  may   cause  such  improvements  in  Improvements, 
the  town  to  be  made  as  may  be   necessary,  and  may  appor-  ™sVmea't  of  la- 
tion  the  same  equally  among  the  inhabitants,  by  assessments  bor,  &c. 
of  labor  or   otherwise,  and  the  citizens  shall  not  be  liable  to  empt  frour 
work  on  the   public   roads  without   the  limits    of  the    town,  woridngon 
When  they  determine  to  repair  or  improve  by  labor,  they  may  j'l.jy  appoint 
appoint  an  overseer  and  compel  such  persons  as  are  liable  to  overseer  of 
perform  duty  on  the  public  roads,  to  work  on  the  streets,  in  citizens  liable 
the  same  manner  and  under  the  same  penalties,  as  are  provided  for  neglect,  as 
by  law  for  the  reparation  of  the  public  roads.     They  may  ap-  xown  patrol. 
point  a  town  watch  or  patrol,  to  be  regulated  by  such  rules  as 

the  commissioners  may  provide. 

17.  They  may  enforce   their    by-laws   and  regulations,  by  By-laws  may 
imposing  penalties  on  such  as  violate  them;  and  compel  the  aj^ti"!,^''  yP°°' 
performance  of  the  duties  they  impose  upon  others,  by  suit- 
able penalties. 

18.  They  shall  have  power  to  make  all  such  laws  and  regu-  Baker'^  bread 
lations   as  they  may  deem  necessary  to   protect  the  citizens  weiltht  re"gu- 
of  the  town  from  imposition  and  fraud  in  the  manufacture,  i'^t«''- 
weight,  and  sale  therein  of  baker's  bread,  and  to  prevent  fraud- 
ulent mixtures  of  other  substances  therewith  ;  so  as  to  insure 

that  the  bread  shall  be  good  and  wholesome,   and   of  full 
weight. 

19.  The  mayor  shall,  by  order  of  the  commissioners,  take  List  of  taxaWe« 
the  list  of  taxables  in  the  town,  in  such  manner  and  at  such  ^„yor!'''''"  ^ 
time  as  the  commissioners  shall  prescribe.  If  the  owners  of  Slaves  of  non- 
slaves  employed  in  town  shall  not  reside  therein,  the  hirers  ^^ij^'i"'*' "  " 
shall  list  them  for  taxation ;  and  if  any  person  fail  to  list  his 

50 


,  ex- 


Town  consta- 
bles, their 
oath,  power, 
and  duties. 


^30  TOWNS.  [Chap.  111. 

when'Vi?'      t^^^bles  within  the  time  prescribed  by  the  commissioners,  he 

Asse"sors of      ^hall  be  liable  to  a  double  tax.     The  commissioners  may  ap- 

po"nted'^'the?r   P*^'-"*  assessors  of  the  real  estate  within  the  town,  who,  before 

oath  and  diuy.  acting,  shall  take  an  oath  before  some  justice  of  the  peace  to 

discharge    their    duties   faithfully   and    impartially ;    and   the 

mayor  and  assessors  shall  make  report  to  the  commissioners 

within  the  time  prescribed  by  them. 

20.  The  town  constable  shall,  before  some  justice  of  the 
peace,  take  the  oaths  prescribed  for  public  officers,  and  an  oath 
that  he  will  faithfully  and  impartially  discharge  the  duties  of 
his  office  according  to  law.  As  a  peace-officer,  he  shall  have 
within  the  town  all  the  powers  of  a  constable  in  the  county; 
and  as  a  ministerial  officer,  he  shall  have  the  same  power  as  a 
constable  in  the  county,  to  execute  all  process  that  may  be 
issued  by  the  mayor,  and  to  enforce  the  ordinances  and  regu- 
lations of  the  commissioners  as  they  may  direct. 

21.  He  shall  have  the  same  power  to  collect  the  taxes  im- 
P°^^'^.^y  ^'^^  commissioners,  as   sheriffs   have  to  collect  the 

tiiepowersof  taxes  imposed  by  the  county  courts;  and  he  may  be  required 
lectioJ"'  ™^"  ^y  ^^^  commissioners  to  give  bond,  with  sufficient  security, 
payable  to  the  State  of  North  Carolina,  in  such  sum  as  the 
cornmissioners  may  prescribe,  to  account  for  the  same;  upon 
which,  suit  may  be  brought  by  the  commissioners,  as  suits  are 
brought  upon  the  bonds  of  other  officers. 

22.  Every  person  elected  or  appointed  commissioner,  mayor, 
town  constable,  or  assessor  of  real  estate,  who,  after  being 

^zb.  duly  notified,  shall  neglect  or  refuse  to  qualify  and  perform 

the  duties  of  his  office  or  appointment,  shall  pay  twenty-five 

dollars,  one  half  to  the  use  of  the  town,  and  the  other  half  to 

the  use  of  any  person  who  will  sue  for  the  same. 

Provisions  of        23.  The  provisions  of  this  chapter  shall  apply  to  all  incor- 

apply  ufa'uin-  PO^ated  towns,  where  the  same  shall  not  be  inconsistent  with 

corporated        the  provisions  of  special  acts  of  incorporation,  or  special  laws 

towns,  unless,    in  reference  thereto. 

24.  If  any  person  residing  in  town,  shall  have  therein  any 
dog,  and  shall  not  return  it  for  taxation,  and  shall  fail  to  pay 
the  tax  according  to  law,  the  commissioners,  at  their  option, 
may  fine  the  person  so  failing  double  the  tax,  or  may  treat 
such  dog  as  a  nuisance,  and  order  his  destruction. 

25.  The  commissioners  shall  annually  publish  an  accurate 
statement  of  the  taxes  levied  and  collected  in  the  town,  to- 
gether with  a  statement  of  the  amount  expended  by  them, 
and  for  what  purpose.  And  any  board  of  commissioners  fail- 
ing to  comply  with  the  directions  of  this  section,  shall  forfeit 
and  pay  one  hundred  dollars  to  any  person  who  will  sue  for 
the  same. 


Shall  give 
bond,  collect 
tax,  and  have 


Tovra  officers 
refusing  to 
qualify,  to  pay 


&c. 
Tax  on  dogs. 
If  not  paid, 
liow  enforced 


Annual  state- 
ment of  taxes 
and  expendi- 
tures to  be 


lublished. 
'enalty  $100. 


Chap.  112.] 


TREASURER. 


591 


CHAPTER     112. 


TREASURER. 


Sectios 

1.  Treasurer  biennially  elected.     Oaths 

taken   and   bond   given.    Form   of 
bond. 

2.  Duplicates  to  be  given ;  how  indorsed, 

and  where  deposited. 

3.  On    failure    to    give    bond,    another 

elected. 
i.  If  failure   occur  in  recess,  governor 
and  council  to  appoint,  &c. 

5.  Judgment  how  entered  on  bond. 

6.  Treasurer  to  Iceep  account  of  receipts 

and  expenditures. 
1.  To  report  to  Assembly. 

8.  Committee  of  finance,  to  report  the 

state  of  the  treasury. 

9.  Warrants,  &c.,  not  to  be  paid,  unless 

they  espi'ess  the  consideration. 

10.  Names  of  defaulting  revenue  officers 

to  be  published. 

11.  Month!)-  settlements  between  treasu- 

rer   and  comptroller.    Balance  de- 
posited in  banks. 

12.  Duplicate  certiflcates  of  deposits  to 

issue. 

13.  Treasurer  may  check  for  deposits. 


Section 

14.  Duty  of  treasurer  and  governor,  on 

suspecting  a  bank  of  insolvency. 

15.  Treasurer  to  give  duplicate  receipts. 

No  receipt  good-  without  comptrol- 
ler's indorsement. 

16.  Accounts  of  hterary,  and  other  funds, 

to  pass  through  comptroller's  office. 

17.  Certificates  of  the  State's  stocks,  to 

be  registered,  iSrc,  by  secretary. 

18.  Comptroller   to   indorse   them,  when 

allowed  as  credits  to  treasurer. 

19.  Copy  of,  good  on  loss  of  original. 

20.  Treasurer  may  appoint  agents  to  col- 

lect, &c. 

21.  Jlay  have  summary  judgment  against, 

&c. 

22.  Office  hours  of  treasurer. 

23.  Penalty  on,  for  not  proceeding  against 

delinquents. 

24.  Proceedings  against  treasurer,  &o.,for 

defalcation. 

25.  Debt  of  State  to  have  priority. 

26.  Int.  improvement  fund  transferred  to 

treasury. 

27.  Treasurer  to  procure  seal  of  office. 


1.    The  treasurer  of  the  State  shall  be  elected,  as  early  in  ^'i'fjf'j^^^g™" 
each  biennial  session  of  the  General  Assembly  as  can  be  con-  oatiis  taken,' 
veniently  done.     Before  entering  into  office,  and  within  twenty-  II^'r'^S"^'' ^ j^g" 
one  days  after  his  election,  he  shall  take   and  subscribe   the  s.  1.-1842,  c. ' 
oaths  prescribed,  before  some  justice  of  the  peace  ;  and  give  ^O- 
bond  with  sureties,  to  be  approved   by  the   governor  and  the 
speakers  of  the  two  houses  of  the  General  Assembly,  payable 
to  the  State  of  North  Carolina,  and  the  following  shall  be  the 
form  thereof ;  namely:  — 

State  of  North  Carolina. 
Know  all  men  by  these  presents,  that  we,  A.  B.  principal, 
and  the  other  obligors  whose  names  are  hereunto  subscribed, 
as  his  sureties,  are  held  and  firmly  bound  unto  the  State  of 
North  Carolina,  in  the  sum  of  two  hundred  and  fifty  thousand 
dollars;  for  the  payment  of  which  we  bind  ourselves,  our  heirs, 
executors,  and  administrators.  Witness  our  hands  and  seals 
this  the  day  of  A.  D. 

The  condition  of  the  above  obligation  is  such,  that  whereas 
the  above  bounden  A.  B.  hath  been  appointed  treasurer  of  the 
State;  now  if  he  shall  faithfully  account  for  all  moneys  and 
other  things  v^'hich  shall  come  to  his  hands  in  virtue   of  his 


FoiTO  of  bond. 
—1842,  c.  60. 


592  TREASURER.  [ChAP.  112. 

office,  and  perform  all  other  duties  required,  and  to  be  required 
of  him  by  law,  then  the  above  obligation  to  be  void  ;  otherwise 
to  remain  in  full  force  and  virtue. 
Duplicates  to  2.  The  treasurer  shall  execute  duplicate  parts  of  said  bond, 
indoised,'and  which  shall  be  indorsed  "  approved,"  and  signed  by  the  gover- 
where  deposit-  nor  and  Speakers  of  the  two  houses  ;  one  part  shall  be  delivered 
115,6.1.  by  the  governor  to  the  comptroller,  and  the  other  to  the  secre- 

tary of  State,  for  safe-keeping;  and  the  justice  performing  the 
duty,  shall  certify  the  oath   as  taken  and   subscribed  by  the 
treasurer,  and  the  same  shall  be  delivered  to  the  comptroller 
and  filed  with  the  bond.     Provided,  that  the  election  of  treas- 
urer shall  not  take  place,  until  after  the  committee  of  finaiice 
shall  have  made  their  report  on  the  state  of  the  treasury. 
On  failure  to         3.    If  the  person  elected  treasurer  shall  fail  to  give  bond  and 
other  electee"."  security,  within  the  time  above  mentioned,  the  governor  shall 
— R.  S.  c.  115,  communicate  the  same   to  the  General  Assembly,  who  shall 

proceed  to  elect  some  other  person. 
In 'recess  "gov-      '^"    ^^  ^*  ^"Y  time  there  should  not  be  twenty-one  days  be- 
ernorand'eoun-  tween  the  election  of  treasurer  and   the  rise  of  the  General 
&c  — if's  c''    -A-Ssembly,  then  the  bonds  shall  be  given  to  the  governor,  within 
115,8.3.  twenty-one   days   after  such    election,   and   by  him    indorsed 

"approved:"  and  if  any  person  elected  treasurer  shall  fail  to 
give  such  bonds,  within  the  time  prescribed,  and  the  General 
Assembly  should  not  then  be  in  session,  the  governor  shall  call 
the  council  of  State  and  appoint  some  other  person  treasurer, 
who  shall  give  the  bonds  within  twenty-one  days,  to  be  ap- 
proved by  the  governor. 
Jadgrnent  how      5_    gyj^t  j^j^y  ^,g  brought  OH  either  of  the  bonds  given  by  the 
bond.— R.  S.  c.  treasurer,  and  judgment  may  be  entered  in  the  same  manner 
115,  s.  4.  2,nd  under  the  same  rules  and  regulations,  as  are  prescribed  for 

entering  judgments  against  delinquent  sheriffs. 
Treasurer  to  Q_    'p|,g  treasurer,  in  books  provided  for  that  purpose  at  the 

keep  account  ...  u    ii     i    x  i   i  i.      c      ii 

of  receipts  and  public  expense,  shall  state  and  keep  an  account  ot  all  money 
expenditures,  received  by  him  on  account  of  public  taxes  and  impositions, 
s.  5.  '  and  otherwise,  and  of  all  moneys  paid  by  him  for  public  dues, 

and  in  pursuance  of  acts  and  resolutions  of  the  General  As- 
sembly, in  such  a  manner  that  the  net  produce  of  the  whole 
revenue,  as  well  as  of  every  branch  thereof,  and  the  amount  of 
disbursements  in  discharge  of  the  several  demands,  may  dis- 
tinctly appear;  which  accounts  shall  at  all  times  be  liable  to 
the  inspection  and  examination  of  the  General  Assembly. 
AV*''b["°t  '^'    The  treasurer  shall  make  an  accurate  statement  of  the 

each  session.— condition  of  the  treasury,  which  shall  be  laid  before  the  Gen- 
K.  S.  c.  115,  s.  gral  Assembly,  and  be  published  and  bound  up  with  the  laws 
of  each  session  ;  in  which  statement  shall  be  specified  the  net 
produce  of  the  several  branches  of  revenue,  the  several  allow- 
ances for  insolvencies,  and  the  arrears  of  any  sheriff,  or  any 
i'Sk  other  person  bound  to  account  with   the   public  treasurer:  all 

'^■*  allowances   and   drafts  made  by  the   General  Assembly,  and 

warrants  issued  by  the  governor,  shall  be  severally  enumerated, 
briefly  setting  forth,  in  whose  favor  they  were  made  or  drawn, 
and  on  what  account. 


Chap.  112.]  treasurer. 


5»3 


8.  The  books  and  accounts  of  the  treasurer  and  comptroller,  ^,7„™^*f^  °^. 
durino-  the  session  of  the  General  Assembly,  shall  be  subject  amine  ami  re- 
to  the'inspection  and  examination  of  the  committee  of  finance,  [;."^'„'gy,fJl?R 
who  shall  carefully  examine  the  exact  condition  and  statement  s.  c.  lis',  s.  7. 
of  the  deposits  made  in  the  banks  by  the  treasurer,  and  ascer- 
tain the  amount  of  funds  of  the  State,  at  the  time  of  the  report 

of  the  treasurer  to  the  General  Assembly,  and  also  ascertain 
the  full  amount  of  money  in  the  treasury,  by  counting  the 
same ;  and  they  shall  report  thereon  at  each  session. 

9.  The  treasurer  shall  not  discharge  any  grant  by  the  Gen-  J^J''™"^fg''pffj; 
eral  Assembly,  or  warrant  of  the  governor,  unless  the  grant  or  unless  they  ex- 
warrant  shall  particularly  express  the  cause  and  service  for  R'J|^^t|ie^«™^^ 
which  the  same  was  allowed  or  issued.  s.  c.  iio,  s.  8. 

10.  On  the  first  day  of  November,  in   every  year,  the  treas-  Names  of  do- 
urer and  comptroller  shall  certify  and  publish  for  one  month,  ^^^J'oa^ce'rrto 
in  some  newspaper  in  Raleigh,  a  list  containing  the  names  of  be  published. 
all  the  revenue  officers  of  the  State,  who  shall,  on  that  day,  "g-  ^-  '=•  "^' 
have  failed  to  account  for  the  public  taxes  and  other  moneys, 

due  by  them  for  the  last  year,  and  which  by  law  are  made 
payable  into  the  treasury  on  the  first  of  October  preceding, 
stating  in  such  list  the  sum  due  from  each  officer  for  that  year. 

11.  The  treasurer  and  comptroller  at  all  times,  except  during  Monthij-  settie- 
the  sitting  of  the  General  Assembly,  shall  have  monthly  settle-  "rllLurer  anir° 
ments  of  all  accounts  of  public  moneys,  which  by  law  they  are  comptroller. 

1,1  1  •  1  iu     u    II    u    1  -J  Balance  to  be 

required  to  keep ;  and  once  m  each  month  shall  balance  said  deposited  iu 
accounts,  and  ascertain  the  amount  of  money  in  the  possession  banks.— R.^S. 
of  the  treasurer,  which  shall,  immediately  thereafter,  be  depos-  '^'      '"'     ' 
ited  by  the  treasurer  in  the  banks  of  the  State. 

12.  For  all  deposits  of  public  money  made  in  a  bank,  the  J^^^^^^'^p^,. 
cashier  shall  at  the  time  give  duplicate  certificates  of  deposit ;  it's  issued.— R. 
one  to  the  comptroller,  which  he  shall  file  and  keep  in  his  S- c  ii5,  s.  ii. 
office,  and  the  other  to  the  treasurer. 

13.  The  treasurer  shall  from  time   to   time,  as  the  Public  Tje^^rer  may 
interest  may  require,  check  for  the  public  moneys  deposited  in  posits.— R.  S. 
the  banks  ;  and  for  the  amounts  drawn  out  he  shall  account  to  «•  ii5,  s.  12. 
the  comptroller  in  their  monthly  settlements ;  but  the  treasurer 

may  check  for  and  keep  in  his  office,  during  the  session  of  the 
General  Assembly,  money  sufficient  to  pay  the  officers  and  • 

members  of  the  two  houses. 

14.  If  at  any  time  the  treasurer  shall  suspect  the  solvency  Duty  of  treasn- 
of  any  bank,  in  which  public  moneys  are  deposited,  he  shall  [jor  on  suspect- 
communicate    the    same    to    the   governor;  and   if,   upon    an '"g  si  ^ank^s 
examination,  the  governor  shall  consider  that  the  public  interest  |°  c.  lio',  s.  13. 
requires  the  money  to  be  withdrawn  from  the  bank,  the  treas- 
urer shall  remove  it. 

15.  The  treasurer  shall,  in  all  payments  made  to  him,  grant  TieaMirci;  to 

.    ,  '  11,  r      1  •    1      1     11  1,     Kive  duplicate 

two  receipts  of  the  same  tenor  and  date  ;  one  ot  which  shall  be  receipts. 
filed  in  the  comptroller's  office,  and  the  other  shall  be  indorsed  No  receipt  .cood 

I  1  11  1  •  1        .,1.1  1        u        without  comp- 

by  the  comptroller  and  continued  with  the  person,  who  has  troiiei's  in- 
made  the    payment :    And  without  such   indorsement  of  the  g'"^*'^i\5"g""j^" 
comptroller,  no  receipt  given  by  the  treasurer  shall  be  valid. 
50' 


TREASURER.  [ChAP.  112. 

Ktera?y"an?        ,\^-    The  receipts  and   expenditures    of   the    literary  fund  • 

;'^.'^wi/°  "f.tf'^/»"J^for  internal  i.tprovements  ;  of  the  funds    appro- 

JK)mptroUePs     •^'"'f  ^^'?.  ^°^  ^'i''  Support  of  the  asylums   for  the  deaf,   dumb 

office^-R.S.c  and  bhnd;  and  for  the  insane,  shall  in   all  cases  be   passed 

'  •     •         through    the    comptroller's    office,  be  examined    by  him    and 

entered  on  his   books,  in  like  manner  as  other  receipts   and 

expenditures.  ^ 

fhe1?a^"°'  ^,  17.    The  treasurer  shall  deliver  to  the  secretary  of  State  all 

SeVeda'nd   .5"  'J^^'^^^^'^f'  f  o^'^"  evidences  of  shares  of  stock  in  any  of 

indorsed  by      ^^'',  "fo^po'-ated  Companies,  in  which  the  State  is  interested- 

sTTiTr?6  f       ^ '?  secretary  of  State  shall  register  the  same  in  a  well-' 

'  ^°""d  ^°«k  kept  for  that  purpose,  and  indorse  the  registration 

on    he  back  of  each  certificate,  or  other  evidence  of  the  claim 

Comptroller  to  °\q'  ^^^''  ^"^  return  the  same  to  the  treasurer. 

indorse  them,         ''f     ^  "^  comptroller,  as  soon  as  his  accounts  shall  be  passed 

^'cTedi'lr^o''  °'l  ^^  ^l^e  General  Assembly,  shall  indorse  upon  each  certffi- 

treasurer.-R.    cf;<^'  Or  Other  evidence  of  public  stock,  that  the  same  has  been 

S.  c.  115,  s.  17.  allowed  by  the  General  Assembly,  as  a  credit  to  the  treasurer 

and  also  the  date  of  such  allowance ;  and  then  shall  return 

such   certificate   or  other  evidence  to  the  treasurer  for  safe- 

Keepmg. 

^tes  ot^origi-      19-  Whenever  any  certificate  of  shares  or  stock  in  any  in- 

?i"i8'-"     Q^T?*'."?  company,  or  other  evidence   of  the  claim  of  the 

State  to  the  same  shall  be  lost  or  destroyed,  a  certified  copy 

thereoffrom  the  secretary's  oflice  shall  be  as  good  and  valid 

Treasurer  and   ^'£  the  original  were  produced. 

governor  may  '^^-  Whenever  It  shall  be  necessary  to  collect  any  moneys 
to'Sc?,"^  °'  to  enforce  any  demands  of  the  State,  in  any  other  State  o^ 
-E.  S.  c.  115,  country,  the  treasurer,  with  the  approbation  of  the  governor, 
'■19.  shall  appoint  an  agent  for  that  purpose,  and  execute  to  him 

letters  of  attorney,  specifying  the  powers  conferred;  and  the 
agent  shall  receive  such  compensation  from  the  treasurer,  as 
the  governor  and  treasurer  may  allow,  or  as  the  General  As- 
sembly may  dn-ect. 
ma&Vr"      21.  The  treasurer  shall  have  full  power  to   move   in   any 
TroutT  ^°"'"^."^  record  for  judgment  against  any  agent  for  the  State 
^.s,.c.ii5,s.  who  IS  indebted  by  reason  of  such  agency,  in  the  manner  and 

Ome?l,onrs  of  ""s^""  't  ^f  TtT'^  M  ""  'T'  '^^^f'^^^'^'^'  ^''^riffs. 

treasurer.-K.  ,  '^'^-  ^^"^  ^"aH  attend  at  his  office  m  the  city  of  Raleio-h,  be- 
S.c.ii5,s.;.2.  tvveen  the  hours  of  nine  and  twelve,  and  between  two  and  five 

o  clock  on  every  day  in  the  year,  (Sundays,  the  fourth  of  July, 
Pe    It   f       /"'i'V^*§^'''"S  <^^^y' '^"'^  Christmas  excepted). 
proceeJin"?""  ^'^^  ^^  '^  ^ny  instance  the  treasurer  shall  neglect  to  call  to 

auems"'R''s  ^^^°""t,  as  directed  by  law,  any  delinquents  herein  before  de- 
TnlX^s      f ''^'',^'  ^vhereby  the  public  revenue  may  suffer  loss,  he  shall 

be  held  and   deemed   accountable  for  the  sums  due  by  such 

de  incjuents,  to  all  intents   and   purposes,  as  if  the  same  had 

actually  been  paid  into  his  office. 
r^aTnst'tfs-r   ,    t"^-  ^^  ^^  any  time  it  shall  appear,  from  the  accounts  kept 
SefiSn'''"'..    r'n"  1       comptroller  and  treasurer,  or  in  any  other  way, 
R  s  c  iiM.  ^''''*  ^'''^  treasurer  has  not  accounted  for  and  paid  over  the 

£6. 


.\ 


Chap.  113.] 


UNIVERSITY. 


595 


public  moneys  of  the  State  as  directed  by  law,  the  State  may 
move  for  and  obtain  judgment  against  the  treasurer  and  his 
sureties  in  any  court  of  record,  first  giving  to  the  persons 
against  whom  such  motion  shall  be  made,  five  days'  notice 
of  the  time  and  place,  when  and  where  such  motion  will  be 
made. 

25.  If  any  treasurer,  or  other  person  indebted  to  the  State,  Debt  of  State 
shall  become  insolvent,  the  debt  of  the  State  shall  be  paid  first  ity.J^R!  s."c.^' 
of  all  debts,  notwithstanding  any  attachment  against  his  ef- lis,  s.  2. 
fects,  or  any  voluntary  assignment  thereof  to  pay  debts,  or  for 

other  purposes.  And  in  case  of  the  death  of  the  debtor,  no 
other  debt  but  funeral  expenses,  shall  be  preferred  to  the  debt 
of  the  State. 

26.  The   fund    now  known    as    the    internal    improvement  Internal  im- 
fund,  and  heretofore  directed  to  be  transferred  to  the  public  fu,°d^™ansfer- 
treasur}',  and  not  otherwise  heretofore  appropriated,  shall  in  red  to  treasury. 
future  be  deemed  and  considered  to  be  a  part  of  the   public 

funds,  and  be  consolidated  therewith;  and  there  shall  be  no 
separation  or  distinct  account  of  the  same. 

27.  The  treasurer  shall  procure  a  seal  of  office  with  such  Treasurer  to 

1       .  , ,  ,  1         ,  1  1  i_  procure  seal  ot 

devices  thereon,   as  the  treasurer    and    governor  deem   most  otGce.— 1S48, 
suitable.  Kes. 


CHAPTER   113. 


UNIVERSITY. 


Section 

1.  License  to  retail  in  two  miles  of  Chapel 

Hill  void. 

2.  Places  in'  two  miles  of  Chapel    Hill 

for  sale  of  linuors,  forbidden. 

3.  No  person  without  written  permit,  to 

sell  liquor  to  be  used  iu  two  miles  of 
Chapel  Hill. 

4.  Electioneering  treats  in  two  miles  for- 

bidden. 
B.  Also  billiard  and  gaming-tables  in  five 
miles. 


Section 

6.  Also  exhibitions  in  five  miles,  without 

license. 

7.  Violation  of  preceding  sections,  amis- 

demeanor. 

8.  Contracts  with  minor  students  with- 

out permission,  void. 

9.  May  be  avoided  under  plea  of  general 

issue. 

10.  Incapable  of  confirmation. 

11.  University  endowed  with  escheats. 

12.  To  take  effect  from  ratification. 


1.  Any  license  granted  to  retail  spirituous  liquor,  wine,  or  l-'f ensc  to  re- 
cordials  at  Chapel  Hill,  or  within  two  miles  thereof,  shall  be  Hiii,\tc.,' void. 
void. 

2.  No  person  shall  erect,  keep,  maintain,  or  have  at  Chapel  Pincesmtwo 

.      .  .  *  '        mdes  of  for 

Hill,  or  within  two  miles  thereof,  any  tippling-house,  establish- j-aie  of  Mciuore, 
ment,  or  place,  for  the   sale   of  wine,  cordials,   spirituous,  or  f<"'t>i'^'l™- 
malt  liquor. 

3.  No  person  in  the  State,  without  permission  in  writing  No  person 
from  the  president  of  the  university,  or  some  member  of  its  ten  i™ml7'to 


596 


sell  liquor  to 
be  used  iu  two 
miles  of  Chapel 
Hill.— R.  S.  c. 
116,  s.  1. 


Electioneering 
treats  forbid- 
den. 

Also  billiard 
and  gaming- 
tables in  five 
miles.— R.  S. 
c.  116,  s.  4. 

Also  exhibi- 
tions in  five 
miles  witliout' 
license. — R.  S. 
c.  116,  s.  3. 


Violating  pre- 
ceding sections, 
misdemeanor. 

Contracts  with 
minor  students 
without  per- 
mission, void. 


May  be  avoid- 
ed under  plea 
of  general  is- 
sue. 


Incapable  of 
confirmation. 


Endowed  with 
escheats. — 2  R. 
S.  p.  428.— 
1789,  s.  2. 


To  take  elTect 
from  ratifica- 
tion. 


UNn'EEsiTT.  [Chap.  113. 

faculty,  shall  sell,  or  offer  to  sell,  or  deliver  to  any  student  of 
the  university,  or  to  any  other  person,  any  wine,  cordial,  spir- 
ituous or  malt  liquor,  for  the  purpose  of  being  used,  or  with 
knowledge  that  the  same  will  be  ii.sed  at  Chapel  Hill,  or 
within  two  miles  thereof,  by  any  such  student. 

4.  No  person,  at  or  within  two  miles  of  Chapel  Hill,  shall 
give  or  furnish  any  electioneering  treat  or  entertainment. 

5.  No  person  shall  set  up,  keep,  or  maintain  at  Chapel  Hill, 
or  within  five  miles  thereof,  any  public  billiard-table  or  other 
public  table  of  any  kind  at  which  games  of  chance  or  skill,  by 
whatever  name  called,  may  be  played. 

6.  No  person,  without  permission  in  writing  obtained  there- 
for from  the  president  of  the  university  or  some  member  of  its 
faculty  seven  days  beforehand,  shall  exhibit  at  Chapel  Hill,  or 
within  five  miles  thereof,  any  theatricals,  slight  of  hand,  or 
equestrian  performances,  or  any  dramatic  recitations  or  repre- 
sentations, or  any  rope  or  wire-dancing,  natural  or  artificial 
curiosities,  or  any  concert,  serenade,  or  performance  in  music, 
singing,  or  dancing. 

7.  Any  person  who  shall  offend  against  any  of  the  provis- 
ions of  this  chapter  hereinbefore  recited,  shall  be  deemed 
guilty  of  a  misdemeanor. 

8.  Every  contract  or  agreement  by  any  student  of  the  uni- 
versity, being  then  a  minor,  with  any  shopkeeper,  merchant, 
trader,  or  other  person,  upon  the  sale  of  any  wine,  cordial, 
spirituous  or  malt  liquor,  or  of  any  goods,  wares,  or  merchan- 
dise, or  any  article  of  trade,  or  with  the  keeper  of  any  livery- 
stable,  shall  be  void,  unless  the  same,  if  made  at  or  within  two 
miles  of  Chapel  Hill,  be  made  under  the  written  permission  of 
the  president  of  the  university  or  some  member  of  its  faculty; 
or,  if  made  at  a  greater  distance  from  Chapel  Hill,  under  the 
written  consent  of  the  person  who  may  have  tlie  control  and 
authority  over  such  student. 

9.  Every  contract  made  with  a  student  of  the  university 
contrary  to  the  provisions  of  the  preceding  section,  shall  be 
void,  and  may  be  avoided  on  account  of  any  of  the  matters 
therein  contained,  on  the  plea  of  the  general  issue.  On  the 
trial  whereof,  if  it  appear  that  the  defendant  was  at  the  time 
of  the  alleged  contract  a  student  of  the  university,  it  shall  be 
presumed  that  he  was  at  the  making  thereof  a  minor. 

10.  Every  such  contract  shall  be  incapable  of  being  con- 
firmed ;  and  any  promise  or  obligation  given  by  such  student 
after  his  arrival  at  full  age  shall  be  void. 

11.  All  the  real  estate  which  has  escheated  or  may  escheat  to 
the  State,  which  has  not  been  reduced  into  possession  by  the 
State  or  the  president  and  directors  of  the  literary  fund,  shall 
be  and  hereby  is  vested  in  the  trustees  of  the  university  for  the 
use  of  the  university. 

12.  This  chapter  shall  take  effect  from  and  after  its  ratifica- 
tion. 


Chap.  115.]  vice  and  immorality. 


597 


CHAPTER    114. 

USURY.  ' 

No  more  than  six  per  cent,  to  be  taken  for  interest.    Persons  taking  more,  to  forfeit 
double  the  value  forborne. 

No  person,  upon  any  contract,  shall,  directly  or  indirectly,  No  more  than 
take  for  loan  of  any  moneys,  wares,  merchandise,  or  commod-  btftaken  for  in- 
ities  whatsoever,  above  the  value  of  six  dollars,  by  way  of  dis-  terest. 
count  or  interest  for  the  forbearance  of  one  hundred  dollars 
for  one  year,  and  so  after  that  rate  for  a  greater  or  less  sum, 
or  for  a  longer  or  shorter  time  :  and  all  bonds,  contracts,  and 
assurances  whatsoever,  for  the  payment  of  any  principal   or 
money  to  be  lent,  or  covenanted  to  be  performed,  upon  or  for 
any  usury,  whereupon  or  whereby  there  shall  be  reserved  or 
taken  above  the  rate   of  six  dollars  on  the  hundred,  as  afore- 
said, shall  be  void.    And  every  person  .who,  upon  any  contract.  Persons  taking 
shall  take,  accept,  and  receive,  by  way  of  any  corrupt  bargain,  douw'e'uie'val- 
loan,  or  other  means  whatsoever,  for  the  forbearing  or  giving  ue  tbrborne.— 
day  of  payment,  a  rate  of  interest  greater  than  hereinbefore  ' 

specified,  shall  forfeit  and  lose,  for  every  such  ofTence,  the 
double  value  of  the  moneys,  wares,  merchandise,  and  other 
things,  so  lent,  bargained,  or  exchanged;  the  one  moiety  to  the 
State,  and  the  other  to  him,  who  will  sue  for  the  same. 


Sect.  1.  Usury  what:  mistake,  6  Ii'e.  226,  3  Dev.  30;  compensation  for  trouble,  4  D.  & 
B.  120.  Condiliotial  contract,  1  Dev.  Eq.  429;  interest  in  advance,  1  Dev.  100;  exchanije 
of  notes,  12  Ire.  334;  corrupt  intent,  13  Ire.  454,  4  D.  &  B.  313,  3  Ire.  415;  loan  in  notes 
below  par,  5  Ire.  692,  3  lb.  622;  imlorser  and  indorsee,  4  D.  &  B.  209,  lb.  313;  innocent 
holder,  3.  Dev.  30;  deed  in  trust,  10  Ire.  428,  4  D.  &  B.  91;  sale,  4  D.  &  B.  512,  1  D.  &  B. 
Eq.  613,  10  Ire.  156;  contract  out  of  State,  7  Ire.  424,  1  Hawks,  471.  Relief' in  equity, 
2  Uev.  Eq.  75,  1  Mur.  225.  Penalty,  6  Ire.  390,  10  lb.  315,  4  lb.  296,  3  ftawks,  28,  3 
Dev.  43,  2  Mur.  200,  2  D.  &  B.  474.  Pkadintj,  6  Ire.  117,  7  lb.  79,  lb.  118,  3  Mur.  237, 
2  Hawks,  57,  4  Dev.  86. 


CHAPTER    115. 


VICE  AND  IMMORALITY. 


Section 

1.  No  person  to  work  on  Sunday,  under 
penalty  of  one  dollar. 


Section 
2.  Penalty  for  swearing  before  a  justice 
holding  his  court. 


1.    On  the  Lord's  day,  commonly  called  Sunday,  no  trades-  No  person  to 
man,   artificer,    planter,   laborer,   or   other  person,   shall,  upon  ^^y^  un"ier'  " 
land  or  water,  do  or  exercise  any  labor,  business,  or  work,  of  penalty  of  one 
his  ordinary  calling,  (works  of  necessity  and  charity  only  ex-  g.  ug'  g.  {^ 


^^8  WASTE.  [Chap.  116. 

cepted,)  nor  employ  himself  in  hunting,  fishing,  or  fowling,  nor 
use  any  game,  sport,  or  play,  npon  pain  that  every  person,  so 
offending,  being  of  the  age  of  fourteen  years  and  upwards, 
shall  forfeit  and  pay  one  dollar. 

s^vveanVbefore  P"  ^^  '^"^  P^*"*""  ^^''*^'  P^fanely  swear  or  curse  in  the  hearing 
a  justice"  &c.  of  a  justice  of  the  peace,  holding  his  court,  the  justice  may 
-R.  h.  0. 118,  commit  him  for  a  contempt,  or  fine  him  fifty  cents. 


CHAPTER    116. 

WASTE. 


Section 

1.  For  and  against  -whom  action  lies. 

2.  Tenant  for  life  aliening,  still  liable. 

3.  Judgment    for    treble   damages    and 

place  wasted. 


Section 

4.  Action  by  one   tenant,   &c.,  against 

cotenant. 

5.  Heirs  shall  have  the  action. 


whomtcfion''      ^- .  ^^ .^^^  ^^^^^  °f  ^'^ste,  an  action  shall  lie  at  the  instance 
lies.  of  him  in  whom  the  right  is,  against   all  persons  committing 

the  same,  as  well  tenant  for  term  of  life,  as  tenant  for  term  of 

years  and  guardians. 
Tenant  for  life      2.    Where  tenant  for  life  or  years  grants  his  estate  to  another, 

and  still  continues  in  the  possession   of  the  lands,  tenements, 

or  hereditaments,  an  action  shall  lie  against  the  said  tenant 

for  life  or  years. 

8.  In  all  such  cases  of  waste,  when  judgment  shall  be 
and  place  waYt:  against  the  defendant,  the  court  shall  give  judgment  for  thrice 
cfl-  the  amount  of  the  damages  assessed  by  the  jury,  and  also  that 

the  plaintiff  recover  the  place  wasted. 
Action  by  ten-      4.    Where  a  joint-tenant  or  a  tenant  in   common  commits 
it^against  co-  waste,  an  action  shall  lie  against  him  ai  the  instance  of  his 

cotenant  or  joint-tenant. 

5.    Every  heir  shall  have  his  action  for  waste  committed  on 

lands,  tenements,  or  hereditaments  of  his  own  inheritance,  as 

well  in  the  time  of  his  ancestor  as  in  his  own. 


aliening,  still 
liable. 


Judgment  for 
treble  damn 


tenant. 


Heirs  shall 
have  the  ac- 
tion.— R.  S.  0. 
119.— 62  Hen. 
3,  c.  23;  6  Ed. 
1,0.6;  11  Hen. 
6,  c.  5;  20  Ed. 
1,  St.  2. 


r.?  v'  Jf'"!''  P""-  °''  I  D-  &  B-  Kq-  631,  2  Hay,  339,  lb.  283,  lb.  110;  bu  husband, 
,««"""  ,%  ^'  hftorcss,  7  Ire.  \ia.  197,  4  D.  &  B.  179;  husband  of  dmorcss,  1  .Jones 
100.     W  Im  tome  fur,  3  Mur.  511 ;  liusl)at,d  and  wife,  Bus.  30.    When  restraintd  in  ejuiiy 


Chap.  117.]  weights  and  measures. 


599 


CHAPTER   117. 


WEIGHTS  AND  MEASURES. 


Section 

1.  Weiglits  and  measures  to  be  used. 

2.  Justices     to    procure    weights     and 

stamps. 

3.  Governor  to  procure  measures. 

4.  Standard  keeper  appointed.    His  oath 

and  bond. 

5.  Weights  and  measures  to  be  tried  by 


Section 

standard  keeper  once  in  two  years, 
and  certlticate  given.  Penalty  for 
not  having  them  examined. 

6.  For  selling  or  buying  by,  when  not 

branded  or  stamped. 

7.  Acre  of  land,  of  what  measure  to  be. 


1.  No  trader  or  other  person  shall  buy  or  sell,  or  otherwise  Weights  and 
use  in  trading,  any  other  weights  or  measures,  than  are  made  ™eif!llii  'g '^^ 
and  used  according  to  the  standard  prescribed  by  the  congress  120. 

of  the  United  States. 

2.  The  justices  of  every  county  shall,  at  the  charge  of  their  .Justices  to  pro- 
county,  provide  sealed  weights  of  hundred,  half  hundred,  quar- 1;"?  {^''''■"'l.'L 
ters  of  hundred,  half  quarters  of  hundred,  seven  pounds,  four  K.  S.  c.  130', 
pounds,  two  pounds,  one  pound,  and  half  pound :   And  they  ^'  ^^ 

shall  also  provide  a  stamp  for  brass,  tin,  iron,  lead,  or  pewter 
weights  and  measures,  and  a  brand  for  wooden  measures,  with 
the  letters  N.  C. 

3.  The  governor  shall  procure  for  each  of  the  counties  now  Governor  to 
or  hereafter  to  be  established,  the  following  of  the  measures  Jlres  — "ifesrc" 
adopted  as  standards  by  resolution  of  congress,  approved  the^o,  s.  i;  isl-2, 
fourteenth  of  June,  one  thousand  eight  hundred  and  thirty-six,  ^"  ^^'  '*'  ^'  ^'  ^' 
which  shall  correspond  with  the  standards  furnished  for  this 

State  by  the  secretary  of  the  treasury  of  the  United  States,  in 
pursuance  of  the  said  resolution,  namely :  a  yard  measure 
made  of  substantial  wood,  duly  sealed,  and  marked  and 
stamped  with  the  letters  N.  C. ;  to  be  of  suitable  size,  and 
placed  in  a  secure  wooden  box,  with  such  fixtures  to  the  same, 
as  the  governor  may  deem  necessary  for  its  proper  use  and 
preservation;  also  the  half-bushel,  peck,  gallon,  half-gallon, 
quart,  pint,  half-pint,  and  gill  measures,  to  be  duly  stamped 
with  the  letters  N.  C. 

4.  The  weights  and  measures,  stamps  and  brands,  thus  pro-  standard  keep- 
vided,  shall  be  kept  at  the  court  house  of  the  respective  coun-  ?j'.appfiiited. 
ties  by  a  standard  keeper,  to  be  elected  by  the  justices  of  the  bond"— r!"s.  c. 
county  courts,  at  least  seven  being  present,  of  whom  a  ma-  ■'^'^'  ^-  ^• 
jority  may  elect;  and  the  person  thus  elected  shall  in  open 

court  take  the  oaths  required  for  public  officers,  and  also  an 
oath  of  office,  and  shall  give  bond,  with  good  and  sufficient 
security,  payable  to  the  State  of  North  Carolina,  in  the  sum 
of  two  hundred  dollars,  conditioned  for  the  safe-keeping  of  the 
weights  and  measures,  stamps  and  brands  aforesaid,  and  for 
the  faithful  performance  of  the  duties  of  his  office. 

5.  Every  person  using  weights  or  measures,  shall  bring  all  Weights  and 

•'    "^  on  7  o  measures  to  be 


600 


•WIDOWS. 


[Chap.  118. 


trieJ  by  stand- 
ard keeper, 
once  iu  two 
years ;  and  cer- 
tificate given. 


Penalty  for  not 
having  tliem 
examined. — R. 
S.  c.  120,  s.  i. 


For  selling  or 
buying  by, 
M-ben  not 
branded  or 
stamped. — R. 
S.  c.  120,  s.  5. 


Acre  of  land, 
of  what  meas- 
ure to  be. — E. 
S.  c.  120,  s.  6. 


his  weights  and  measures  and  steelyards  to  the  standard 
keeper  of  the  county,  where  such  person  shall  reside  or  trade, 
to  be  there  tried  by  the  standard;  and  every  trader  or  dealer 
by  profession,  and  every  miller,  at  least  once  in  every  two 
years  thereafter,  shall  cause  their  weights,  measures,  and  steel- 
yards to  be  reexamined  and  adjusted  by  the  standard  keeper 
of  the  county,  in  which  such  weights  and  measures  are  used; 
and  the  standard  keeper,  when  practicable,  shall  mark,  by 
stamp  or  brand,  the  weights,  measures,  and  steelyards  found 
or  made  to  agree  with  the  standard,  and  shall  give  a  certificate 
of  such  examination  and  adjustment,  stating  the  weights, 
measures,  and  steelyards  by  him  examined  and  adjusted:  and 
every  person  using,  buying,  or  selling  by  weights  and  meas- 
ures, who  shall  neglect  to  comply  with  the  requisites  of  this 
section,  shall  forfeit  fifty  dollars,  to  be  recovered,  at  the  instance 
of  the  standard  keeper;  one  half  to  his  use,  and  the  other  half 
to  the  use  of  the  county  wherein  the  offence  is  committed. 

6.  If  any  person  shall  buy,  sell,  or  barter  by  any  weight  or 
measure,  which  shall  not  be  tried  by  the  standard,  and  sealed 
or  stamped  as  aforesaid,  he  shall  for  every  such  offence  forfeit 
and  pay  forty  dollars :  and  if  any  person  shall  sell  and  deliver 
any  kind  of  grain,  salt,  or  other  articles  in  a  less  measure,  than 
the  standard,  he  shall  forfeit  and  pay  for  each  offence  forty  dol- 
lars, to  the  person  suing  therefor. 

7.  The  measure  of  an  acre  of  land  shall  be  equal  to  a  rec- 
tangle of  sixteen  poles  or  perches  in  length  and  ten  in  breadth, 
and  shall  contain  one  hundred  and  sixty  square  perches  or 
poles,  or  four  thousand  eight  hundred  and  forty  square  yards  ; 
six  hundred  and  forty  such  acres  being  contained  in  a  square 
mile. 


CHAPTER   118. 


WIDOWS. 


Seotiok 

1.  Widows  of  intestates,  and  widows  dis- 

senting from  husband's  will,  may 
take  dower.  Fraudulent  convey- 
ance not  to  defeat  dower.  To  in- 
clude dweUing-house,  unless,  &c. 

2.  Proceedings  to  obtain  dower.    When 

lands  lie  in  several  counties. 
S.  Jury  not   bound  to   assign  on   each 

tract. 
4.  Proceedings  to  be  summary. 

B.  How  to  allot  in  case  of  dissent. 

C.  Allowed    of   rights    of    redemption, 

trusts,  &c. 


Section 

7.  How  obtained  of  lands  in  this  and 

other  States. 

8.  Dower,  and  land  in  lien,  not  subject  to 

husband's  debts. 

9.  Widow  entitled  to  emblements. 

10.  Sale  of  dower  land,   to   convey  Ii<v 

right  only. 

11.  Wife  eloping,  &c.,  barred  of  dower. 

12.  Widow  dissenting,  to  take  as  on  intes- 

tacy.   How  personalty  allotted. 

13.  Not  dissenting,  to  share  intestuto  es- 

tate. 


Chap.  118.] 


GOl 


Section 

14.  C'iiiininc;  under  will,  as  to  creditors 

considered  a  legatee. 

15.  Widows  of  intestates,  leaving  no  kin- 

dred to  have  all  the  personalty. 
Proceedings  to  obtain  it. 

16.  To  give  bond  to  refund,  if  kin  appear, 

&c.    Proviso  for  infants  and  others. 

17.  Widow  of  intestate  may  take  charge, 

&c.,  of  personalty  till  administra- 
tion. Provided  she  applies  for  let- 
ters at  first  court. 

18.  Entitled  to  year's  provision,  and  cer- 

tain articles  if  on  hand.    May  retain 
the  articles. 
,19.  Proceedings  for  year's  provision. 


Section 

20.  What  decree  on  confinnation  of  re- 

port. 

21.  When  petition  is  filed  before  adminis- 

ti-ation,  what  to  be  allotted  and  how. 

22.  Property  allotted,  vested  in  widow  for 

self  and  family. 

23.  Widow  dissenting,  entitled  to  year's 

provision.  Within  what  time  to  peti- 
tion. Specific  articles  deUvered  forth- 
with. 

2-1.  If  estate  be  levied  on,  entitled  to  ar- 
ticles exempt  from  execution. 

25.  Widows  detained  of  dower,  entitled  to 
damages. 


1.  If  any  per.son  shall  die  intestate,  or  shall  make  his  last  widows  of  in- 
will  and  testament  and  not  therein  make  an  express  provision  testates,  and 
for  his  wife,  by  giving  and  devising  unto  her  such  part  or  par-  sVnti'ng  ivom 
eel  of  his  real  or  personal  estate,  or  to  some  other  for  her  use,  imsband's  will, 
as  shall  be  fully  satisfactory  to  her,  such  widow  in  person,  or  d"^ver!^  ^ 

by  attorney  if  an  adult,  and  if  an  infant  or  insane  by  guar- 
dian, may  signify  her  dissent  thereto,  before  the  county  court 
of  the  county  wherein  she  resides,  in  open  court  when  the  will 
is  propounded,  or  within  six  months  after  the  probate  thereof; 
and  in  such  case  she  shall  be  eu titled  to  dower  in  the  follow- 

y  manner,  namely :  one  third   part  of  all  the    lands,  tene-  Fraudulent 
ments,  and  liereditaments  of  which  her  husband  died  seized  <^ou™yance 
or    possessed,    or    which    he   had    fraudulently   conveyed    to  "ower.  '^  '^^^ 
his  children,  or  otherwise,   with    intent  to  defeat  her  of   her 
dower ;  in  which  third  part  shall  be  comprehended  the  dwelling-  Dower  to  in- 
house  in  which  her  husband  shall  have  been  accustomed  to  elude  dwelling- 
dwell   most  generally  next   before   his   death,  and  commonly  &™-k"s!^c!' 
called  the  mansion-house,  together  with  the  ofRces,  outhouses,  i2i,_s-  i.-is48, 
buildings,  and  other  improvements  thereunto  belonging  or  ap-  "'  ^''^'*''  ''''^' 
pertaining.     Provided  alwaijs,  that,  in  case  it  should  appear  to 
the  court  that  the  whole  of  said  houses  cannot  be  applied  to  the 
use  of  the  wife,  without  manifest  injustice  to  the  children  or 
others,  the  widow  shall  be  entitled  to  such  part  or  portion  of 
the   houses  as  they  shall  conceive  will  be  sufficient  to  aifbrd 
lier  a  decent  residence,  due  regard  being  had  to  her  rank  and 
her  past  manner  of  life. 

2.  Any  widow  having  claim  to  dower  may  file  her  petition  Proceedings  to 
in  the  county  or  superior  court  of  the  county  wliere.  her  hus-  obtain  dower, 
band  shall  have  usually  dwelt,  setting  forth  the  nature  of  her 

claim,  and  particularly  specifying  the  lands,  tenements,  and 
hereditaments,  of  which  she  claims  dower,  and  praying  that 
her  dower  may  be  allotted  to  her;  whereupon  the  court  shall 
issue  a  writ  to  the  sheriff  of  the  county,  where  the  lands,  tene- 
ments, and  hereditaments  of  the  deceased  husband  lie,  com- 
manding him  to  summon  twelve  freeholders,  unconnected  with 
the  parties  by  consanguinity  or  affinity,  and  entirely  disinter- 
51 


602  WIDOWS.  [Chap.  118. 

ested,  who,  upon  oath,  (which  the   sheriff  may  administer,) 
shall  allot  and  set  otl^  to  the  widow  one  third  part  of  all  the 
lands,  tenements,  and  hereditaments  in  said  county,  of  which 
her  husband  was,  as  aforesaid  seized  or  possessed,  or  which    i 
had  been  by  him  fraudulently  conveyed  as  aforesaid,  and  shall    i 
put  her  in  possession  of  the  same  ;  and  when  the  proceedings    > 
of  the  jm-y  shall  be  confirmed  by  the   court,  the  title  in   the    i 
lands  allotted  for  dower  shall  be  deemed  to  have  been  vested    j 
in  her,  during  her   natural  life,  from  the  time  she  was  put  in    | 
When  lands  lie  possession  ;  and  in  case  such  lands,  tenements,  and  hcredita-    j 
ioimtfes!— R.    ments  lie  in  several  counties,  the  court  shall  issue  a  writ  to  the 
S.c.:2i,  s.  2.    sheriff  of  the  county  wherein   the  petition   is   filed;  and  the 
sheriff  may  summon   a  jury  from   any  or  all  the  counties  in 
which  the  lands  may  be  situate,  who  shall  allot  her  dower  of 
all  the  lands.  '. 

toassrn  dowCT      ^'    "^^^  ^^^^  ^^'^'^  "°*'  ^^  restricted  to  assign  or  lay  off  dower    j 
on  each  tract,  in  every  separate  tract  of  land,  but  may  allot  the  same  in  one    | 
— R.  S.  0. 121,  body  or  several,  on  one  or  more  tracts,  having  due  regard  to    i 
the  interest  of  the  heirs  and  the  right  of  the  widow.  1 

Proceedings  to      4.    The  proceedings  for  dower  shall  be  in  a  summary  man-    I 
R^  s"!'™T2T,s! Z  ner;  and  the  court  shall,  at  the  first  terra  when  the  petition  is    I 
filed,  hear  and  determine  as  shall  seem  just  and  right.     Pro- 
vided always,  that  the  heirs  or  devisees  shall  have  ten  days' 
previous  notice,  and  be  served  with  a  copy  of  the  petition. 
Jnrvhowtoal-      5.    When   the  widow  shall  have  dissented   from   her  hus- 
fee^nt-R?*^?.  band's  will,  it  shall  be  the  duty  of  the  jury,  and  they  shall  be 
c.  121,  s.  5.       SO  directed,  to  assign  and  set  off  her  dower  in  such  manner  as 
will  derange,  in  as  small  a  degree  as  practicable,  the  devises  of 
the  will. 
Allowed  in  6.   When  a  man  shall  die  seized  of  a  legal  right  of  rcdemp- 

dlmptionr       *^°"'  ^^  °^  ^"  equity  of  redemption,  or  other  equitable  or  trust 
trusts,  &c.— R.  estate,  in  fee,  his  wife  shall  be  entitled  to  dower  therein,  sub- 
.  c.  121,  s.  6.  jg^^  1^  valid  incumbrances  thereon,  in  the  same  manner  as  in 
legal  estates  of  inheritance. 
How  obtained       7.    Whenever  a  widow  shall  be  entitled  to  dower  in  lands 
and^other"    "^  i'l  this  State  and  also  in  another  State,  and  she  cannot  wilh- 
States.— R.  S.   out  suit  obtain  assignment  of  her  dower,  for  want  of  the  con- 
'  '^'  '       sent  of  the  terre-tenants,  or  other  cause,  if  her  husband  shall 
have  been  at  the  time  of  his  death  a  resident  of  this  State,  or 
not  a  resident  at  that  time  of  any  of  the  States  in  which  his 
lands  lie,  and  in  this  last  case,  the  most  valuable  part  of  his 
lands  shall  lie  in  this  State;  then  such  widow  may  proceed  in 
obtaining  her  dower  in  all  the  lands  of  her  deceased  husband, 
lying  in  this  and  other  States  as  aforesaid,  in  the  same  man- 
ner and  under  the  same  rules,  regulations,  and  restrictions,  as 
are   prescribed    for    obtaining  partition    of   lands    devised    or 
descended  to  any  persons  as  tenants  in  common,  when  such    j 
lands  lie  in  this  and  other  States  as  before  described. 
ndlnii"?  ^'    "^''^"^  dower  of  a  widow,  and  also  such  lands  as  may  be 

not  subject 'to    devised   to   her  by  his  will,  if  such  lands  do  not  exceed  the 
I2i"'~8^"  ^'  '^'  quantity  she  would  be  entitled  to  by  right  of  dower,  shall  not 


Ch^vp.  118.]  WIDOWS.  603 

be  subject  to  the  payment  of  debts  due  from  the  estate  of  her 
husband,  during  the  term  of  her  life. 

9.  The  crop  at  her  death  on  the  land  held  by  a  widow  in  To  have  em- 
dower,  shall  belong  to  her.  s.TT2r:~'*' 

10.  No  alienation  by  a  widow,  with  or  without  covenants  S;iie  ofiiower 
of  warranty,   of  the  lands  held   by   her   in  dower    or  of  the  tfriKhrunlyf 
gift  or  devise  of  her  husband,  shall  have  any  other  or  further  — R-  S-  c.  I'ii, 
effect,  than  to  pass  her  own  interest  in  the  same. 

11.  If  a  wife  willinerlv  leave  her  husband  and  sro  away  and  ^'[^  eloping 
contniue  with  her  adulterer,  she  shall  be  barred  forever  oi  any  baned.  ■ 


which  case  she  shall  be  restored  to  her  claim. 

12.  When  a  widow  shall  dissent  from  her  husband's  will,  she  Widow  di?- 
shall  take  as  fully,  and  such  part  of  his  personal  estate,  as  she  r\son'i7i'tcst;n;v. 
would  take  in  case  of  his  intestacy,  except  that  she  shall  not  How  oiintted. 
be  entitled  to  more  than  one  third  ;  and  the  share  of  a  widow,  s.  12, 13.'  "  ' 
dissenting  as  aforesaid,  shall  be  allotted  to  her  in  such  manner, 

as  to  create  as  little  derangement  of  the  provisions  of  the  will 
as  practicable. 

13.  Whenever  there  shall  be  any  personal  estate,  undis-  Not  dissenting, 
posed  of  by  the  testator,  the  widow,  if  she  may  not  have  dis-  ["tfeTatll-R. 
sented  from  the  will,  shall  be  entitled  to  such  part  of  the  same,  S.  c.  121,  s.  12. 
as  if  her  husband  had  died  altogether  intestate. 

14.  The  widow,  claiming  under  her  husband's  will,  shall  in  ciaimingmider 
relation  to  creditors  be  considered  as  a  legatee,  and  be  charge-  jloi's^co'isW-  " 
able  for  the  whole  amount  of  her  husband's  estate  that  may  ered  a  legatee, 
come  to  her,  either  as  legatee,  or  in  the  manner  by  this  chapter  ""j^^  '  "'  •'^^' 
prescribed ;  and  shall  be  bound  to  refund  to  the  executors  or 
administrators  her  ratable  part  of  such  debts  or  demands,  as 

may  be  afterwards  sued  for  and  recovered,  or  otherwise  duly 
made  appear  against  the  estate  of  her  husband,  in  the  same 
manner  as  other  legatees,  and  by  the  same  process. 

15.  If  any  person  shall  die  intestate,  or  having  left  a  will  in  Widowj!  of  in- 
which  there  is  a  residue  undisposed  of,  and  leaving  a  widow  ing  no  kindred, 
and  no  kindred  that  are  known  to  exist,  the  widow  may,  at  t" _''^™  ■>'!  *« 
the  expiration  of  three  years  from  the  grant  of  administration  P*^'^""*  -^" 

or  the  will  proved,  file  her  petition  in  the  court  of  equity  of 
the  county,  in  which  administration  was  granted,  or  the  will 
proved,  against  the  administi'ator  or  executor,  stating  the  facts 
of  the  case,  and  that  there  are  no  persons  of  kindred,  to  her 
knowledge,  and  praying  that  the  surplus  of  the  estate  may  be 
adjudged  to   her;  which   petition   shall  be   sworn   to  by  the  Proceedings 


cases  of  petition.  The  court  shall  order  notice  of  the  fill 
the  petition,  and  the  substance  thereof,  to  be  published  in 
some  newspaper  printed  at  Raleigh,  for  at  least  four  months; 
and  if,  at  the  next  term  of  the  court,  no  claimant  shall  appear, 
a  jury  shall  inquire  whether  there  be  any  known  kindred  of 
the  intestate;  and  if  they  shall  find  that  there  was  not  any 
kindred  of  the  intestate,  livinc;  at  his  decease,  the  court  shall 


604 


WIDOWS.  [Chap.  118. 


adjudge  and  decree  that  the  administrator  or  executor  account 
witii  tlie  widow  for  the  whole  surplus  personal  estate.  Pro- 
vided alu-ai/s,  that,  at  any  time  pending  said  petition,  any 
person  claiming  to  be  of  kin  to  the  intestate,  may  apply  to  the 
court  by  petition,  to  be  made  defendant  to  tlic  widow's  peti- 
tion, and  to  contest  the  facts  stated  therein. 

refund"  ifTin*"     .^^'  ^^.  ^'^'^  ^°^^^  '^'^'^'^  adjudge  the  surplus  to  be  paid,  the 

appear' inseven  widow,  in  addition  to  the  refunding  bond  required  of  distrib- 

years.  utees,   shall  enter   into  bond   in   double   the    sum    recovered, 

with  two  good  sureties,  conditioned  that  she  will  refund  to  the 

next   of  kin  of  her  husband,  the   said  surplus,  if  they   make 

fante'^anrothl  ^^^'^"^  thereof,  within  seven  years  after  such  decree.     Provided, 

ers.— ii,  s.  c.    neucrlheless,  that  such  next  of  kin  as  may  be  infants,  or  non 

121,  s.  16.        compos  mends,  at  the  date  of  the  decree,  may  prosecute  their 

claijn,  notwithstanding  the  said  seven  years  may  have  expired, 

if  they  shall  do  so  within  three  years  after  their  disability  shall 

be  removed  ;  and  that  such  as  be  resident  at  the  date  of  the 

decree  out  of  the  State,  not  being  at  that  time  infants  or  tion 

compos  mentis,  may,  in  the  same  manner,  prosecute  their  claim 

within  ten  years  after  tlie  date  of  the  decree. 

Widowofin-         17.    Where  a  man  shall  die  intestate,  leaving  a  widow,  she 

take  chargi,      ^^Y  t^'^^  into  her  charge  and  possession  the  whole  of  the  per- 

&c.,  of  person-  sonal  estate  of  such  intestate,  and  use  so  much  of  the  crop, 

Sbn!"''"™"  ^'^0'='^''   '^'id   provisions   then  on  hand,    as   may  be   absolutely 

necessary  for  the  support  of  herself  and  family,  until  such  time 

as  letters  of  administration  may  be  granted  on  the  estate  of 

her  deceased  husband,   when   her  right  to  the  possession,  by 

a"iiel'^fbr'r    ^''^"^^^^  °^  *'"^  section,  shall  cease.     Provided  always,  tliat  she 

Slffiret^''  ^'^^11  app'y  for  administration   upon  such   estate  at  the  first 

J°'j"'^--K- S.  c.  court  which  shall  be  held  after  her  husband's  decease,  in  the 

'  ^'     ■       ,  county  in  which  he  usually  resided. 
Entitled  to  18.    Such  widow,  besides  her  distributive  share,  shall  be  en- 

anf ce?tain  ar- ^^^^''^  ^°  ^  Support  for  one  year,  for  herself  and   her  family, 
tides  if  on        out  of  her  husband's  personal  estate,  to  be  allotted  to  her  out 
MiTy  retain       °^  ^'l''  *^'"°P'  ^tock,  and  provisions,  if  there  be  as  much  on  hand  ; 
articles.— R.  s.  and  if  there  be  not  enough  for  that  purpose,  then  the  value  of 
c.  131,8.18,21.  the  deficiency  shall  be  assessed  in  money,  and  paid  to  her  by 
the   proper   representative    of  the  estate.     She   shall  also  be 
entitled  (if  such    articles   be   on  hand)   to  one   bed  and   its 
necessary  furniture,  one    loom,  one  wheel,  and  one   pair  of 
cards,  which   she  shall  be  allowed  to  retain,  immediately  after 
the  death  of  her  husband. 
Proceeding.^  to  •    19.    For  such  support  the  widow  shall  file  her  petition  in 
provSom-R.   ^^^  county  court  of  the  county  where  letters  of  administration 
S.  0. 121,  s.  18.  or  letters  testamentary  are  issuable,  at  or  before  the  first  term 
when   the  same  are   granted  ;   and  thereupon   the  court  shall 
appoint  a   justice  of  the  peace  and  three  freeholders,  uncon- 
nected with  her,  (who  shall  be  duly  sworn  by  some  justice  of 
the  peace)  for  the  purpose  of  allotting  the  year's  support,  and 
assessing  the  deficiency,  if  there  be  any.     And  the  said  justice 
and  a  majority  of  the  freeholders  shall  meet  on  the  premises, 


Chap.  118.]  widows.  605 

and  on  view  shall  make  the  assessment,  and  make  dae  return 
thereof  in  writing  to  the  court. 

20.  Upon  return  of  the  report,  if  the  same  be  not  ex'cepted  What  decree 
to  by  the   administrator,  or  next  of  kin,  or  any  legatee,  or  i  f  "ion  of  report. 
excepted  to,  and  the  exception  be  disposed  of,  the  court  shall  — R-  s.  c.  121, 
make  such  decree  therein  as  may  seem  to  be  right  and  proper;^'     >   ■'-  • 
and  the  value  assessed  for  the  deficiency  and  the  costs  of  the 

petition  shall  be  paid  by  his  personal  representative  in  prefer- 
ence of  the  debts  of  the  intestate,  if  there  be  assets ;  and  if 
there  be  none,  then  the  cost  shall  be  paid  by  the  petitioner. 

21.  If  the  petition  be  filed  before  the  term  when  such  letters  ■mien  petition 
are  granted,  and  there  be  no  crop,  stock,  or  provisions  on  'ad,iv',7' Jimt'to 
hand,  or  not  sufficient,  the  commissioners,  besides  the  aforesaid  be  allotted  and 
specific  articles,  may  allot  to  the  widow  any  article  of  personal  22r'~i'9  ^"  °' 
property  of  the  intestate,  (slaves  excepted ;)  and  also  any  debt 

or  debts  known  to  be  due  such  intestate :  and  such  allotment 
shall  vest  in  the  widow  the  right  to  collect  by  warrant  or 
otherwise,  in  an  action  of  debt  in  her  own  name,  the  debts 
allotted  to  her. 

22.  The  allotment  of  any  articles   in  kind,  or  of  the  crop,  Property  allot- 
stock,  and  provisions,  or  of  any  articles  of  personal  property  '^t'!  ,y'^f'i?seif° 
in  lieu  thereof,  as  above  provided,  shall  vest  in  the  widow  an  and  family.— 
absolute  right  therein  to  her  own  use,  and  the  use  of  her  chil-  5j  ^'  °"  ^^^'  '• 
dren,  but  shall  nevertheless  be  returned  in  the  inventory  of  the 

estate,  by  the  representative,  therein  noticing  that  the  same 
has  been  allowed  the  widow  for  her  support. 

23.  Any  widow,  dissenting  from  the  will  of  her  husband  Widow  dissent- 
within  the  time  prescribed,  may,  within  six  months  after  the  yet/s^mwu-*" 
probate,  obtain  a  year's  provision  for  herself  and   family,  and  ion. 

such  other  articles  as  are  allowed  widows  of  intestates,  in  the  p^J^jg^"™^'" 
same   manner  as   if  her  husband  had  died  intestate;  and  it  Specific  arti- 
shall  be  the  duty  of  the  executor,  or  the  administrator  with  the  fOTthw'thf— r. 
will  annexed,  to  deliver  to  her  the  articles  of  furniture  allowed  S.  c.  121,  s.  22. 
to  widows  of  intestates,  (if  such  articles  be  on  hand)  immedi- 
ately after  she  has  declared  her  dissent. 

24.  If  by  reason   of  any  levy   upon  the  estate  of  the   de- If  estate  be 
ceased,  or  other  cause,  the  widow  cannot  obtain  a  year's  pro- {^("Jg^ toa'rt'ides 
vision  otherwise,  she  shall  be  entitled  to  the  articles  exempted  exempt  from 
from  sale  under  execution,  by  sections  eight  and  nine  of  the  i^ig^cl'ssTi. 
chapter  entitled  "  Executions,"  upon  complying  with  the  re- 
quirements of  said  sections. 

25.  Every  widow  having  a  right  to  dower,  shall  be  entitled  Widows  de- 
to  damages  during  the  time  the  dower  is  detained  from  her,  in  ta'^ed  ot  dow- 

<j  ~  '         er,   entitled    to 

the  like  manner  as  such  damages  have  heretofore  been  allowed  damages. 
to  her  in  the  State. 


Sect.  1.  Dmocr:  from  u-hal  estatef,  A  Ire.  Eq.  264,  6  lb.  329,  10  Ire.  123,  4  D.  &  B. 
442,  3  Oev.  3,  3  Hawks,  125,  1  Dev.  Eq.  1»5.  Estate  of  domeress,  4  D.  &  B.  179,  7  Ire. 
Eq.  197, 1  Dev.  Eq.  77,  3  Ire.  61.  J)ojoer  on  liisscnt  from  mill,  Bus.  177,  2  Dev.  Eq.  372. 
Dnmiiqes  for  detmlim  of,  1  D.  &  B.  213,  2  D.  &  B.  Eq.  32.5,  2  Mur.  79,  1  lb.  128.  Coitr. 
veyuncex  in  fraud  of,  1  D.  &  B.  li(i.  22,  1  D.  &  B.  327,  4  Ire.  105,  Bus.  475. 

Sect.  2.    Vkudmy,  8  Ire.  247,  4  D.  &  B.  601,  4  Ire.  105. 

51* 


606 


WILLS   AND    TESTAMENTS.  [ChAP.    119. 


Sect.  11.  13  Ire.  3G1. 

Sect.  12.  Bus.  ¥.q.  77. 

Sect.  13.  6  Ire.  136. 

Sect.  la.  Riicm:erable  at  law  only,  8  Ire.  Eq.  201.  Xut  barred  by  aihtllen/,  12  Ire.  170. 
Death  of  widow  before  allotment,  5  Ire.  184,  lb.  418.  Stock,  2  Hiiy.  149.  Aloney  oti  hand, 
11  Ii-e.  165.    Petition  to  be  Jikd,u;hen,iDev.  US. 


CHAPTER    119. 


WILLS  AND   TESTAMENTS. 


Section 

1.  Wills  of  real  and  personal  estate,  how 

executed. 

2.  Ages  of  testators  and  executors. 

3.  Wills  of  manied  -n-omen,  how  and 

where  proved. 

4.  Appointments   by  will,  executed  as 

wills.  Valid,  though  other  required 
foiins  be  not  observed. 

5.  All  property,  rights,  and  interests  may 

be  disposed  of  by  will. 

6.  Wills  to  speak  at  the  de.ath  of  testa- 

tor.    ' 

7.  Lapsed  and  void  devises'  to  pass  under 

residuary  clause. 

8.  A  general  gift  to  include  estates  which 

testator  has  power  to  appoint. 

9.  Executor  competent  witness. 

10.  Devises,  &c.,  to  witnesses,  void. 

11.  "What  nuncupative  will  good,  where 

the  estate  exceeds  $200. 

12.  How  proved.     Next   of  kin    to    be 

cited." 

13.  County  courts  shall  have  jurisdiction 

of  probate  of  wills. 

14.  Production    of    wills    compelled    by 

court.  Persons  refusing,  committed 
to  jail. 

15.  Wills  proved  in  county  where  testator 

resided.  Manner  of  proving.  Ca- 
veated  wills  tried  by  jury. 

16.  Made  in  another   State  disposing  of 

property  in  this,  how  proved. 

17.  AVills  of  citizens  of  another  country  or 

State,  allowed  and  recorded  in  this, 
—how.  Not  to  pass  lands  in  this 
State,  unless  executed,  &c. 

18.  Wills  of  citizens  of  this  State  proved 


Section 

elsewhere,  how  certified,  proved,  and 
recorded  here. 

19.  WUls  filed  in  clerk's  oflice. 

20.  No   will  elfcctual,   without   probate. 

Probate  conclusive,  —  when. 

21.  Copies  of  wills  evidence. 

22.  Written  wills,  how  revoked. 

23.  Revoked  by  marriirge. 

24.  Not  by  altered  circumstances. 

25.  Nor  by  conveyances  after  will  ex«- 

cnted. 

26.  Devises  construed  to  be  in  fee,  unless 

the  contrary  appear. 

27.  What  slaves  pass  under  "  increase." 

28.  Gifts  to  issue  dying  and  leaving  issue 

living  at  testator's  death,  to  vest  in 
living  issue. 

29.  Child,  born    after  parent's  will  exe- 

cuted, entitled  .as  on  intestacy. 

30.  How  to  proceed  in  such  case. 

31.  His  share  of  real  estate  to  be  allotted 

of  undevised  lands,  if  any.    Other- 
wise of  lands  devised. 

32.  Of  personal  estate,  allotted  of  intes- 

tate property,  if  any.     Otherwise,  of 
property  bequeathed. 

33.  Intestate  estate,  applied  in  exonera- 

tion of  all  devised  or  bequeathed. 

34.  Such  child  to  bo  seized  in  fee.     De- 

visees and  legatees  entitled  to  con- 
tribution from  each  other. 

35.  After  decree,  petitioner  deemed  lega- 

tee and  devisee. 

36.  If  such  children  do  not  proceed  in  two 

years,  executor  to  proceed :  —  how. 
87.  Eights  of  after-born  children,  lien  on 
whole  estate. 


Wills  of  real  1.    No   last  will  Or  testament  shall    be   good   or  snilicieiit, 

L'titriioT^ex-  in  l^w-  or  ccjuity,  to  convey  or  give  any  estate,  real  or  pcr- 
eouted.— R.  s.  sonal,  unless  sncli  last  will  shall  liave  been  written  in  the  tes- 
i840,"c.  C2;~  tator's  lifetime,  and  signed  by  him,  or  by  some  other  person  in 
1846,  c.  54.       his  presence  and  by  his  direction,  and  subscribed  in  his  pres- 


Chap.  119.]  wills  and  testaments.  607 

once  by  two  witnesses  at  least,  no  one  of  whom  shall  be  inter- 
ested in  the  devise  or  bequest  of  the  said  estate.  Or,  unless 
such  last  will  and  testament  be  found  among  the  valuable 
])apers  and  effects  of  any  deceased  person,  or  shall  have  been 
lodged  in  the  hands  of  any  person  for  safe-keeping,  and  the 
same  shall  be  in  the  handwriting  of  such  deceased  person,  with 
his  name  subscribed  thereto,  or  inserted  in  some  part  of  such 
will;  and  if  such  handwriting  shall  be  proved,  by  three 
credible  witnesses,  who  verily  believe  such  will  and  every  part 
thereof  is  in  the  handwriting  of  the  person  whose  will  it  ap- 
pears to  be,  then  such  will  shall  be  sufficient  to  give  and  con- 
vey real  and  personal  estate. 

2.    No  person  shall  be  capable  of  disposing  of  real  or  per-  Agesoftosta- 
sonal  estate  by  will,  nor  be  allowed  to  qualify  as  executor  of  tors.— r.^s.  o." 
a   will,  until   he   shall   have   attained  the   age   of  twenty-one  122,  s.  14. 
years. 

1  3.    When  a  married  woman,  under  any  will,  deed,  settlement,  Wills  of  m.ir- 
or  articles,  shall   have  power,  by  an  instrument  in  nature  of  a  how  and  wb'ere 
will,  to  appoint  or  dispose  of  any  property,  real  or  personal,  proved.— 1844, 
and  she  shall  execute  such  instrument,  the  same  may  be  ad-  ^'     '  ^' 
mitted  to  probate  in  the  court  of  pleas  and  quarter-sessions,  or 
may  be  proved  originally  in  a  court  of  equity,  upon  a  proper 
bill  for  that  purpose  ;  and  either  mode  of  probate  shall  be  con- 
clusive as  to  the  due  execution  thereof. 

4.  No  appointment,  made  by  will  in  exercise  of  any  power,  Appointmenta 
shall  be  valid,  unless  the  same  be  executed  in  the  manner  by  cf'Jtedi'ikt^wiiis. 
law  required,  for  the  execution  of  wills ;  and  every  will,  exe-  Valid,  though 
cuted  in   such   manner,  shall,  so   far   as  respects  the  execution  forms'be"iot 
and  attestation  thereof,  be  a  valid  execution  of  a  power  of  ap-  observed.— 
pointraent   by   will,   notwithstanding  it  shall   have   been    ex-  9^**'  °"  ^^'  ^" 
pressly  required,  that  a  will  made  in  exercise  of  such  power 

should  be  executed  with  some  additional  or  other  form  of 
execution  or  solemnity. 

5.  Any  testator,  by  his  will  duly  executed,  may  devise,  be-  All  property, 
queathe,  or  dispose  of  all  real  and  personal  estate,  which  he  shall  [guests  mav'be 
be  entitled  to,  either  at  law  or  in  equity,  at  the  time  of  his  disposed  of  by- 
death,  and  which,  if  not  so  devised,  bequeathed,  or  disposed  of,  gg  ^Ti.     '  °' 
wouid  descend  or  devolve  upon  his  heirs  at  law,  or  upon  his 
executor  or  administrator;  and  the  power  hereby  given,  shall 

extend  to  all  contingent,  executory,  or  other  future  interest  in 
any  real  or  personal  estate,  whether  the  testator  may  or  may 
not  be  the  person  or  one  of  the  persons,  in  whom  the  same 
may  become  vested,  or  whether  he  may  be  entitled  thereto 
under  the  instrument  by  which  the  same  was  created,  or  under 
any  disposition  thereof  by  deed  or  will;  and  also  to  all  rights 
of  entry  for  conditions  broken,  and  other  rights  of  entry  ;  and 
also  to  such  of  the  same  estates,  interests,  and  rights  respec- 
tively, and  other  real  and  personal  estate,  as  the  testator  may 
be  entitled  to,  at  the  time  of  his  death,  notwithstanding  that 
he  may  become  entitled  to  the  same  subsequently  to  the  exe- 
cution of  his  will. 


608  WILLS    AND    TESTAMENTS.  [ChAP.    119. 

Wills  to  speak  6.  Every  will  shall  be  construed,  with  reference  to  the  real 
Tf  testator!'-''  fi"d  personal  estate  comprised  therein,  to  speak  and  take  effect, 
1844,  c.  88,  s. 3.  as  if  it  had  been  executed  immediately  before  the  death  of  the 

testator,  unless  a  contrary  intention  shall  appear  by  the  will. 
Lapsed  and  7.    Unless  a  contrary  intention  shall  appear  by  the  will,  such 

void  devises  to  jggj  gg(-j^j-g  q^  interest  therein,  as  shall  be  comprised,  or  in- 
pass  under  .,.  ',.        .  i-n  •        i 

residuary  tended  to  be  comprised,  in  any  devise  in  such  will  contained, 
clause.— 1844,   ^hid^  shall  fail  or  be  void  by  reason  of  the  death  of  the  de- 

C.  oo,  S.  4.  .  .  , .         .  *' 

visee  in  the  lifetime  of  the  testator,  or  by  reason  of  such  devise 
being  contrary  to  law  or  otherwise  incapable  of  taking  effect, 
shall  be  included  in  the  residuary  devise  (if  any)  contained  in 
such  will. 
A  general  gift       8.    A  general  devise  of  the  real  estate  of  the  testator,  or  of 
tates  wbiciftes-  ^^^  ^^^^  estate  in  any  place  or  in  the  occupation  of  any  person 
tatoriias  power  mentioned  in   the  will,  or  otherwise   described   in   a   general 
i64T'oT88T6.  ™^'^"^'"' ^h'^^^  ^^  construed  to  include  any  real  estate,  or  any 
real  estate  to  which  such  description  shall  extend,  (as  the  case 
may  be,)  which  he  may  have  power  to  ajjpoint  in  any  manner 
he  may  think  proper ;  and  shall  operate  as  an  execution  of  such 
power,  unless  a  contrary  intention  shall  appear  by  the  will : 
and  in  like  manner  a  bequest  of  the  personal  estate  of  the  tes- 
tator, or  any  bequest  of  personal  property,  described  in  a  gen- 
eral manner,  sliall  be  construed  to  include  any  personal  estate, 
or  any  personal  estate  to  which  such  description  shall  extend, 
(as  the  case  may  be,)  which  he  may  have  power  to  appoint  in 
any  manner  he  may  think  proper,  and  shall  operate  as  an  exe- 
cution of  such  power,  unless  a  contrary  intention  shall  appear 
by  the  will. 
Executor, com-      9.    No  person,  on  account  of  his  being  an  executor  of  a  will, 
pe  en  ■*^"^^^^- gj-,g^ji  j^g   incompetent  to  be  admitted  a  witness  to  prove  the 
execution  of  such  will,  or  to  prove  the  validity  or  invalidity 
thereof. 
Devises  and  10.    If  any  person  shall  attest  the  execution  of  any  will,  to 

■wSneeses  void,  whom   or  to    whose  wife  or  husband  any  beneficial  devise, 
estate,  interest,  legacy,  or  appointment  of  or  afl'ecting  any  real 
or  personal  estate  shall  be  thereby  given  or  made,  such  devise, 
estate,  interest,  legacy,  or  appointment,  shall,  so  far  only  as 
concerns  such  person  attesting  the  execution   of  such  vrill  or 
the  wife  or  husband  of  such  person,  or  any  person  claiming 
under  such  person,  or  wife  or  husband,  be  void;  and  such  per- 
son so  attesting,  shall  be  admitted  as  a  witness  to  prove  the 
execution  of  such  will,  or  the  validity  or  invalidity  thereof. 
Whatnuncu-         11.    No  nuncupative  will  in    anywise  shall  be  good,  where 
goodi  where      *he  estate  exceeds  two  hundred  dollars,  unless  proved  by  two 
the  estate  ex-    credible  witnesses  present  at  the  making  thereof,  and  unless 
dred'doTiars.—  they  or  some  of  them  were  specially  required  to    bear  witness 
K.  s.  c.  122,      thereto  by  the  testator  himself,  and  unless  it  was  made  in  his 
'■   ■  last  sickness,    in    his    own    habitation   or  dwelling-house,  or 

where  he  had  been  previously  resident,  ten  days  at  least,  ex- 
cept he  be  surprised  with  sickness  on  a  journey  or  from  home, 
and  die  without  returning  to  his  dwelliii''. 


CUAP.    119.]  WILLS   AND    TESTAMENTS.  609 

12.  No  nuncupative  will  shall  be  proved  by  the  witnesses  How  proved. 
after  six  months  from  the  making,  unless  it  were  put  in  writ-  {,e  cited.— r!° 
ing  within  ten  days  ;  nor  shall  it  be  proved  till  fourteen  days  s.  c.  122,  s.  3. 
after  the  death  of  the  testator,  nor  till  process  has  first  issued 

to  call  in  the  widow  or  next  of  kin,  or  both,  if  conveniently  to 
be  found,  to  contest  it  if  they  tliink  proper. 

13.  The  courts  of  pleas  and  quarter-sessions  shall,  witliin  Co.  courts  to 
their  respective  counties,  take  the  probate  of  wills,  and  order  uon^'f  m'obata 
the  same  to  be  recorded  in  proper  books,  kept  for  that  purpose  ;  of  wills.— R.  S. 
and  shall  make  orders  for  issuing  letters  testamentary,  and  let-  '^'   ■'■''^'  ' 
ters   of  administi-ation  to   the   persons   entitled  to  the  same, 

which  shall  be  signed  and  issued  by  the  clerks  of  the  said 
courts. 

14.  The  court  of  pleas  and  quarter-sessions,  upon  applica-  Production  of 

..  I     11    1  1  •       ii         04-    J.      wills  compelled 

tion,   shall   by  summons,   compel    any  person    m   the    otate,  ^.y  com-t/ 
having  in  his  possession  the  will  or  testament  of  any  deceased 
person,  to  exhibit  the  same  to  the  court  for  probate ;  and  who- 
ever, being  duly  summoned,  shall,  in  contempt  of  the  court, 
refuse  to  produce   such  will  in  his   possession,  or,  (the  same 
having  been  in  his  possession,)  shall  refuse  to  inform  the  court  Persons  refus- 
on  oath,  where  such  will  then  is,  or  in  what  manner  he  hath  "o'^jaiL— B.  s. 
disposed   of  the  same,  shall,  by  order  of  court,  be   committed  0.122,5.4. 
to  the  common  prison  of  the  county,  there  to  remain  with- 
out bail,  .until  such  will  shall  be  produced,  and  due  submis- 
sion made  to  the  court  for  the  contempt. 

15.  All  wills  shall  be  proved  in  the  county  where  the  testa-  .'^'I's  proved 
tor  had  his  usual  residence  at  the  time  of  his  death,  or  in  case '^here'testator 
he  had  fixed  places  of  residence  in  more  than  one  county,  in  resided. 
any  of  said  counties;  and  in  case  of  a  written  will,  with  wit- 
nesses thereto,  the  same  shall  be  proved  by  at  least  two  of  the 
subscribing  witnesses,  if  living ;  but,  if  contested,  shall  be  proved  Manner  of 
by  all  the  living  witnesses,  if  to  be  found,  and  by  such  other  {^"J^afed  wuij 
persons  as  may  be  produced  to  support  the  same.     And  where  tried  by  jury, 
the  validity  of  any  last  will  or  testament,  whether  written  or  ~f-  ®-  '^-  ■'^^' 
nuncupative,  shall  be  contested,  the  same  shall  be  always  tried 

by  a  jury,  on  an  issue  made  up,  under  the  direction  of  the 
court,  for  that  purpose. 

16.  Whenever  it  shall  be  suggested  to  the  court  of  pleas  Made  in  an- 
and  quarter-sessions,  that  a  will  has  been  made  without  the  po^ing^of'prop^ 
State,  disposing  of  or  charging  lands  or  other  property  situate  erty  iuthis, 
within  the  same,  the  court  may  order  a  commission  to  issue  to  r°^s.''c.''i22'  "~ 
such  person  as  it  may  select,  to  be  returned  at  any  subsequent  s-  7. 

term  thereof,  authorizing  the  commissioner  to  take  the  exami- 
nation of  such  witnesses,  as  may  be  produced,  touching  the 
execution  thereof;  and  upon  return  of  such  testimony,  the 
court  may  adjudge  the  said  will  to  be  or  not  to  be  duly  proved, 
in  the  same  manner  as  it  now  can  on  the  oral  examination  of 
witnesses  in  open  court ;  and  if  duly  proved,  the  same  shall  be 
recorded. 

17.  When  any  will,  made  by  a  citizen  of  any  otlier  State  Wills  of 
or  country,  shall  be  didy  proved  and  allowed  in  "such  State  or  '"'*''f"'  "f 

•' '  ''    *  another  coun- 


610 


TVILLS   AND    TESTAMENTS. 


[Chap.  119. 


trv  or  State, 
allowed  and 
recorded  ia 
thi?,  how. — 
1644,  c.  88,  s.  6. 


Not  to  pass 
lands  in  this 
State,  unless 
executed  ac- 
cordinff  to  its 


Wills  of  citi- 
zens of  this 
State  proved 
elsewhere,  how 
certified, 
proved,  and 
recorded  here. 
—1844,  c.  88, 
s.  7. 


■Wills  filed  in 
clerk's  ofEce.- 
R.  S.  c.  132, 


No  will  effectu- 
al, without  pro- 
bate. 

Probate  con- 
clusive, when. 
— K.  S.  c.  122, 


Copies  of,  evi- 
dence.— R.  S. 
c.  122,  s.  9. 

Written  wills, 
how  revoked. 
—11.  S.  c.  122, 
s.  12,  13.— 
1840,  0.  62. 


country,  according  to  the  laws  thereof,  a  copy  or  exemplifica- 
tion of  such  will  duly  certified  and  authenticated,  when  pro- 
duced and  exhibited  before  the  court  of  pleas  and  quarter-ses- 
sions of  any  county,  wherein  may  be  any  property  of  the 
deceased,  shall  be,  by  such  court,  allowed,  filed,  and  recorded; 
and  letters  testamentary  or  of  administration,  as  the  case  may 
require,  shall  be  issued,  and  other  proceedings  thereupon  had, 
and  the  like  effect  given  to  the  said  will,  as  if  the  original,  in- 
stead of  the  copy,  had  been  produced  and  allowed  in  the  said 
court.  Prodded,  that  when  such  will  shall  contain  any  devise 
of,  charge  upon,  or  power  concerning,  any  real  estate  situate  in 
this  State,  such  devise,  charge,  or  power  shall  not  have  any 
validity  or  operation,  unless  the  will  shall  have  been  executed 
according  to  the  law  of  this  State :  and  the  court,  in  which 
the  same  may  be  exhibited,  shall  have  power  to  issue  commis- 
sions for  taking  proofs  touching  the  execution  thereof,  to  make 
up  an  issue  touching  such  devise,  charge,  or  power,  to  examine 
witnesses,  and  to  take  all  other  proceedings  thereupon,  ac- 
cording to  the  law  and  course  of  the  court  in  like  cases. 

18.  When  a  will,  made  by  any  citizen  of  this  State,  shall 
be  proved  and  allowed  in  some  other  State  or  country,  and  the 
original  will  cannot  be  removed  from  its  place  of  legal  deposit 
in  such  other  State  or  country,  into  this  State  for  probate,  the 
court  of  pleas  and  quarter-sessions  of  the  county  of  this  State, 
having  cognizance  thereof,  upon  a  duly  certified  copy  or  exem- 
plification of  such  will  being  propounded  for  probate,  may  take 
all  and  every  order  and  proceeding  for  the  proving,  allowing, 
and  recording  the  said  copy,  as  by  law  might  be  had  or  taken 
upon  the  production  of  the  original ;  and  the  copy,  being  in 
such  court  duly  proved,  allowed,  and  recorded,  according  to 
the  course  of  the  court,  shall  have  the  same  legal  effect  and 
operation,  to  all  intents  and  purposes,  as  if  the  original  had 
been   produced,  proved,  allowed,  and  recorded. 

19.  All  original  wills  shall  remain  in  the  clerk's  office, 
among  the  records  of  the  court,  where  the  same  shall  be 
proved,  and  to  the  said  wills  any  person  may  have  access,  as 
to  the  other  records. 

20.  No  will  shall  be  effectual  to  pass  real  or  personal  estate, 
unless  it  shall  have  been  duly  proved  and  allowed  in  the  pro- 
bate court;  and  the  probate  of  a  will  devising  real  estate  shall 
be  conclusive  as  to  the  execution  thereof,  against  the  heirs  and 
devisees  of  the  testator,  whenever  the  probate  thercofj  under 
the  like  circumstances,  would  be  conclusive  against  the  next 
of  kin  and  legatees  of  the  testator. 

21.  Copies  of  wills,  duly  certified  by  the  proper  officer,  may 
be  given  in  evidence  in  any  proceeding  wherein  the  contents 
of  the  will  may  be  competent  evidence. 

22.  No  will  or  testament  in  writing,  or  any  clause  thereof, 
shall  be  revocable,  otherwise  than  by  some  other  will  or  codicil 
in  writing,  or  other  writing  declaring  the  same,  or  by  burning, 
cancelling,  tearing,  or  obliterating  the  same,  by  the  testator 
himself,  or  in  his  presence  and  by  his  direction  and  consent: 


Chap.  119.]  wills  and  testaments.  611 

but  all  wills  or  testaments  shall  remain  and  continue  in  force, 
until  the  same  be  burnt,  cancelled,  torn,  or  obliterated  by  the 
testator,  or  in  his  presence  and  by  his  consent  and  direction; 
or  unless  the  same  be  altered  or  revoked  by  some  other  will  or 
codicil  in  writing,  or  other  writing  of  the  testator,  signed  by 
him,  or  some  other  person  in  his  presence  and  by  his  direction, 
and  subscribed  in  his  presence  by  two  witnesses  at  least;  or 
unless  the  same  be  altered  or  revoked  by  some  other  will  or 
codicil  in  writing,  or  other  writing  of  the  testator,  all  of  which 
shall  be  in  the  handwriting  of  the  testator,  and  his  name  sub- 
scribed thereto  or  inserted  therein,  and  lodged  by  him  with 
some  person  for  safe-keeping,  or  left  by  him  in  some  secure 
place,  or  among  his  valuable  papers  and  effects,  every  part 
of  which  will  or  codicil  or  other  writing  shall  be  proved  to 
be  in  the  handwriting  of  the  testator,  by  three  witnesses  at 
least. 

23.  Every  will  made  by  a  man  or  woman,  shall  be  revoked  ^';™^^^'^  '^ 
by  his  or  her  marriage,  except  a  will  made  in  e.xercise  of  a  isii.'cTss,  s. 
power  of  appointment,  when  the  real  or  personal  estate,  there-  ^^■ 

by  appointed,  would  not  in  default  of  such  appointment,  pass 
to  his  or  her  heirs,  executor  or  administrator,  or  the  person 
entitled  as  his  or  her  next  of  kin,  under  the  statute  of  distri- 
butions. 

24.  No  will  shall  be  revoked  by  any  presumption  of  an  in-  Not  by  altered 
tention,  on  the  ground  of  an  alteration  in  circumstances.  — i844,''o.  88. ' 

25.  No  conveyance  or  other  act  made  or  done  subsequently  Nor  by  convey- 
to  the  execution  of  a  will  of,  or  relating  to  any  real  or  personal  executed!—^'" 
estate  therein  comprised,  exct'pt  an  act  by  which  such  will  ism,  c.  88,  s. 2. 
shall  be  duly  revoked,  shall  prevent  the  operation  of  the  will 

with  respect  to  any  estate  or  interest  in  such  real  or  personal 
estate  as  the  testator  shall  have  power  to  dispose  of,  by  will,  at 
the  time  of  his  death. 

26.  When  real  estate  shall  be  devised  to  any  person,  the  Devises  con- 
same  shall  be  held  and  construed  to  be  a  devise  in  fee-simple,  unless  contrary 
unless  such  devise  shall,  in  plain  and  express  words,  show,  or  appear.— i:.  s. 
it  shall  be  plainly  intended  by  the  will,  or  some  part  thereof,  *^'  "-' " 
that  the  testator  intended  to   convey  an  estate  of  less  dig- 
nity. 

27.  A  bequest  of  a  slave  with  her  increase  shall  be  con- What  ?inves 
strued  to  include  all  her  children  born  before  the  testator's  "'lncre"le.'" 
death,  unless  a  contrary  intention  appear  by  the  will. 

28.  When  any  person,  being  a  child  or  other  issue  of  the  Gifts  to  issue, 
testator,  to  whom  any  real  or  personal  estate  shall  be  devised  i,f^'ifsue'iiv'i'T" 
or  bequeathed  for  any  estate  or  interest  not  determinable  at  or  "t  testator's 
before  the  death  of  such  person,  shall  die  in  the  lifetime  of  the  inmch  issue, 
testator,  leaving  issue,  and  any  such  issue  of  such  person  shall  — K-  s.  c.  122, 
be  living  at  the  death  of  the  testator,  such  devise  or  bequest  " 

shall  not  lapse,  but  shall  take  effect  and  vest  a  title  to  such 
estate  in  the  issue  surviving,  if  there  be  any,  in  the  same  man- 
ner, proportions,  and  estates,  as  if  the  death  of  such  person 
had  ha]ipencd  immediately  after  the  death  of  the  testator,  un- 
less a  contrary  intention  shall  appear  by  the  will. 


612  WILLS   AND   TESTAMENTS.  [ChAP.    119. 

Chilli,  born  af-       29.   Cliildrcii,  bom  after  the  making  of  their  parent's  will, 
miuxecuied,   '^"•^1  'vvhose  ]3arent  shall  die  without  making  any  provision  for 
&^-— 15- ,S- c-     them,  shall  be  entitled  to  such  share  and  portion  of  said  pa- 
"''  ^'   "'         rent's  estate,  as  if  he  or  she  had  died  intestate. 
How  to  proceed      30.   Within  two  years  after  probate  of  the  will,  such  child 
pJti!'c.'u2,'Z  "^^y  pi'cfi-'i'  'lis  bill  in  the  court  of  equity,  or  his  petition  in  the 
16, 17.        '      county  or  superior  court,  against  the  personal  representatives 
and  devisees  of  the  testator,  and  his  heirs  also,  if  any  part  of 
the  real  estate  shall  be  undevised,  setting  forth  the  facts  which 
entitle  him  to  relief;  and  the  court  shall  order  all  proper  ac- 
counts to  be  taken,  and  when  necessary,  shall  appoint  commis- 
sioners as  in  proceedings  for  partition  of  lands,  to  allot  and  set 
oft' the  share  of  such  child  in  the  real  estate  of  the  testator. 
His  share  of  31.  The  share  of  the  child  in  such  real  estate,  shall  be  allot- 

anottecu'f  mi-^  t'^d  to  him  out  of  any  lands  not  devised,  if  there  be  enough  for 
devised  lauds,   that  purpose;  and  if  there  be  none  undevised,  or  not  enough, 
Otherwise,  of    ^^"5"  ^'^^  whole  share,  or  the  deficiency,  as  the  case  may  be, 
hmds  devised,    shall  be  made  up  of  the  lands  devised ;  and  so  much  thereof 
sTis.  '"'  ^^'  shall  be  taken  from  the  several  devises  according  to  their  re- 
spective values,  as  near  as  may  be  convenient,  as  will  make 
the  proper  share  of  such  child. 
Of  person.aity,       32.  And  the  share  of  such  child  in  the  personal  estate,  shall 
testate' proper-  ^®  P^i"^  ^'"^1  delivered  to  him  out  of  any  such  estate  not  be- 
ty,  ifaiiy.         qucathed,  if  there  Ije  enough  for  that  purpose;  and  if  there  be 
property  be-     'lonc  Undisposed  of,  or  not  enough,  then  the  whole  share,  or 
queathed.— R.   the  deficiency,  as  the  case  may  be,  shall  be  made  up  from  the 
-,  s.     .  ggi^^^i^g  bequeathed  ;  and  so  much  shall  be  taken  from  the  sev- 
eral legacies,  according  to  their  respective  values,  as  will  make 
the  proper  share  of  such  child. 
Intestate  es-  33.  Provided,  that,  if  after  satisfaction  of  the  child's  share  of 

*^4''S>w  '■'^^1  «^s*^f*^  o>^i*  of  undevised  lands,  there  shall  be  a  surplus  of 
ail  devised  or    such  lands,  and  there  be  no  personal  estate  undisposed  of,  or 
E^''s.''c!'i22T.  "°*  enough  to  make  up  his  share  of  such  estate,  then  such 
ir,  18.        '      surplus  of  land,  or  as  much  thereof  as  the  court  shall  decree, 
shall  be  sold  and  the  proceeds  applied  to  the  making  up  his 
share  of  such  personal  estate :  And  provided  furlhcr,  that,  if 
after  satisfaction  of  the  child's  share  of  personal  estate,  out  of 
property  undisposed  of  by  the  will,  there  shall  be  a  surplus  of 
such  property,  then  such  surplus  shall  be  applied,  as  far  as  it 
will  go,  in  exoneration  of  the  lands  both  devised  and  descend- 
ed, and  the  same  shall  be  set  apart  and  secured  as  real  estate 
to  such  child,  if  an  infant,  non  compos,  ox  feme  covert. 
Snch  child  to        34.   Upon  the  allotment  to  such  child,  of  any  real  estate  in 
be  seized  in  fee.  ^^g  manner  aforesaid,  he  shall  thenceforth  be  seized  thereof  in 
fee-simple ;  and  the  court  shall    give  judgment  severally,  ill 
Devisees  and    favor  of  sucli  of  the  dcvisecs  and  legatees,  of  whose  lands  and 
Uettto  coi'i'tri-   l<^g^cies  more  has  been  taken  away  than  in  proportion  to  the 
bution  from      respective  values  of  said  lands  and  legacies,  against  such  of 
s^^e"! Tirsrw'  ^^^^  devisees  and  legatees,  of  whose  lands  and  legacies  a  just 
20.        '        '  proportion  has  not  been  taken  away,  for  such  sums  as  will 
make  the  contribution  on  the  part  of  each  and  every  of  them 


Chap.  119.]  wills  and  testaments.  613 

equitable,  and  in  the  ratio  of  the  values  of  the  several  devises 
and  legacies ;  and  the  costs  attending  the  petition  and  pro- 
ceedings therein,  shall  be  within  the  discretion  of  the  court. 

35.  The  petitioner,  after  such  decree,  shall  be  considered  and  After  decree, 
deemed  in  law  a  legatee  and  devisee  as  to  his  portion,  shall  Jjeemed'iefatee 
be  styled  as  such  in  all  legal  proceedings,  and  shall  be  liable  and  devise°e.— 
to  all  the  obligations  and  duties  by  law  imposed  on  such.    Pro-  ^{  ''■  "'  ^^^'  ^" 
vided  alivaijs,  that  all  judgments  or  decrees,  bond  fide  obtained 

against  the  devisees  and  legatees,  previously  to  the  preferring 
of  any  petition  as  aforesaid,  and  which  in  law  and  equity  were 
binding  upon,  or  ought  to  operate  upon,  the  lands  and  chattels 
devised  or  bequeathed,  shall  be  carried  into  execution  and 
effect,  as  if  this  chapter  had  never  been  passed,  and  the  peti- 
tioner shall  take  his  portion  as  aforesaid,  completely  subject 
thereto.  And  provided  also,  that  any  suit  instituted  in  law  or 
equity  against  the  devisees  or  legatees,  previously  to  such  pe- 
tition, shall  not  be  abated  or  abatable  thereby,  nor  by  the 
decree  thereon,  but  shall  go  on  as  instituted,  and  the  judgment 
and  decree,  unless  obtained  by  collusion,  be  carried  into  com- 
plete execution ;  but  on  the  filing  of  the  petition,  daring  the 
pendency  of  such  suit,  the  petitioner,  by  his  next  friend  or 
guardian,  may  become  a  defendant  in  the  suit. 

36.  In  case  no  petition  shall  be  filed  within  two  years  as  if  such  child 
herein  prescribed,  the  executor  or  administrator  with  the  wilH°"°.'P™- 
annexed,  before  he  shall  pay  or  deliver  the  legacies  in  the  will  ytars^'exe^u- 
given,  or  before  paying  to  the  next  of  kin  of  the  testator  any  tor  toproceed; 
residue  undisposed  of  by  the  will,  shall  call  upon  the  legatees,  122^'s.  22.'''  °' 
devisees,  heirs,  and  next  of  kin,  and  the  said  after-born  child, 

by  bill  in  equity  or  petition  in  the  superior  or  county  court,  to 
litigate  their  respective  claims,  and  shall  pray  the  court  to  as- 
certain the  share  to  which  said  child  shall  be  entitled,  and  to 
apportion  the  shares  and  sums,  which  the  legatees,  devisees, 
heirs,  or  next  of  kin,  shall  severally  contribute  toward  the  share 
to  be  allotted  to  said  child  ;  and  the  court  shall  adjudge  and 
decree  accordingly. 

37.  The  rights  of  such  after-born  child,  shall  be  a  lien  on  E'si'ts  of,  lien 
every  part  of  the  parent's  estate,  until  his  several  share  thereof  ta'tel-i't!  s!"c. 
shall  be  set  apart.  122,  s.  24. 


Sect.  1.  ]\[iist  he  proved  in  court  of  probate,  2  D.  &  B.  Eq.  463,  6  Ire.  Eq.  248. 
Execution:  witness  must  sign  in  presence  of  testator,  1  Jones,  321,  10  Ire.  219,  11  lb.  632 
1  lb.  551,  1  Mnr.  176 ;  witnesses  who,  Bns.  454,  3  D.  &  B.  40,  2  Hawks,  368 ;  attesta- 
tion: mark,  13  Ire.  259.  Publication,  1  Mur.  258;  rejmblicalion,  9  Ire.  288,12  lb.  355: 
bii  codicil,  6  Ire.  Eq.  55.  Holograph,  1  Jones,  150,  4  Ire.  335,  1  Dev.  296,  1  Hawks,  384. 
-tj/i-ff  o/ji)TOfoi(e,  6  Ire.  Eq.  248. 

Sect.  3.    9  Ire.  170,  1  lb.  514,  3  Ire.  Eq.  242. 

Sect.  6.    Prospective  only,  12  Ire.  21;  construction.  Bus.  Eq.  246. 

Sect.  11.   9  he.  156,  2  Mur.  350. 

Sect.  15.  Domicil,  9  Ire.  99,  5  Ire.  Eq.  190,  1  Ire.  345.  Trial  of  issue,  cfc,  11  Ire.  49, 
Bus.  454,  5  Ire.  97,  4  lb.  335;  after  appeal,  2  Dev.  393.  Evidence:  declarations,  6  Ire. 
212,  lb.  289;  handwriting  of  witnesses,  2  D.  &  B.  311.  Reprobate  when,  9  Ire.  256,  lb. 
109,  3  D.  &  B.  47,  3  Ire.  82,  2  Hawks,  24,  1  D.  &  B.  482,  4  Dev.  430.  Practice,  12  Ire. 
355,  1  D.  &  B.  186,  1  Dev.  459,  1  Hawks,  68,  2  Car.  L.  R.  634. 

Sect.  17.   Bus.  277,  lb.  184,  6  Ire.  267,  lb.  421,  2  D.  &  B.  125,  2  Hawks,  237. 

52 


614 


WRECKS. 


[Chap.  120. 


Sect.  20.    Certificate  of  probate,  10  Ire.  186,  2  Dey.  527, 1  Jones,  111. 

Sect.  22.  Jieroeatimi :  burning,  1  Jones,  197,  10  Ire.  139;  muliluliwi,  3  Ire.  303;  con- 
ditional cancellation,  2  D.  &  B.  311. 

Sect.  23.   Bus.  17. 

Sect.  26.    B  Ire.  430. 

Sect.  27.  3  Ire.  Eq.  362,  4  Ire.  287,  lb.  255,  3  lb.  155,  2  D.  &  B.  Eq.  353,  4  D.  &  B. 
B27;  went  into  effect,  when,  5  Ire.  Eq.  111. 

Sect.  28.  Uncle  and  niece,  2  Ire.  Eq.  330.  Child  dead  at  making  of  mil,  4  Ire.  Eq. 
320. 

Sect.  29,  1  Jones,  Eq.  130. 


CHAPTER    120. 

WRECKS. 


Section 

1.  Wreck  districts  in  certain  counties, 

how  laid  off.     County  of  Hyde  may 
lay  off  districts  for  itself. 

2.  Commissioners  of  wrecks   appointed 

by  county  court.    Their  bond  and 
oath. 

3.  To    reside   in    the   district  —  not   to 

be    pilot;  or    officer  under  United 
States. 

4.  Their  duty   when   ships  in  danger. 

Salvors  to  be  paid.  Amount  ascer- 
tained by  referees,  if  parties  disa- 
gree. Superior  court  may  examine 
award. 
B.  Commissioners  to  take  charge  of,  sell, 
&c.,  wrecked  property.  To  render 
account  of  sales.     Compensation. 

6.  Sale  advertised;  how  long  and  where. 

How  to  proceed  when  property  is 
damaging. 

7.  Commissioner  not    to    take  salvage. 


Sectiojj 

No  person  to  interfere  with  his 
rights. 

8.  Proceedings  when  there  is  a  wreck 

and  no  person  claiming.  Goods  sold 
and  proceeds  sent  to  county  court. 
If  not  claimed  in  one  year,  to  be- 
long to  public  ti'easury. 

9.  Finders  of  wrecked  property  to  notify 

commissioner.  Penalty  for  conceal- 
ing it. 

10.  Finders,  concealing  stranded  goods, 

deemed  guilty  of  larceny. 

11.  Embezzlers,  or  receivers  of  such  goods, 

punished  as  for  larceny,  &c. 

12.  Penalty  on  commissioners  for  abuse  of 

trust. 

13.  On  persons  refusing  to  aid  in  saving 

vessels,  &c.  Summons  proved  by 
him. 

14.  Finders  of  wrecked  property  at  sen, 

to  deliver  it  to  commissioner. 


Wreck  districts      1.    The  couiities  of  Currituck,  Carteret,  Onslow,  New  Han- 
'cmmti'^i"how    over,  and  Brunswick,  are  hereby  divided  into  the  following 
laid  off.  — R.  S.  wreck  districts,  namely  :  the  county  of  Currituck,  into  four  dis- 
i844,^i.'58;I    tricts  ;  the  first  from  the  Virginia  line  to  Judy's  cove  ;  the  scc- 
1, 7-'       '       end  from  Judy's  cove  to  Cafley's  inlet ;  the  third  from  Caffey'.s 
inlet  to  the  place  usually  called  the  "  Sheep  Pen  "  ;  the  fourth 
from  the  Sheep  Pen  to  New  inlet:   the  county  of  Carteret, 
into  five  districts;  the  first  from  the    Hyde  county  line  to 
Ocracoke    inlet ;    the    second  from  Oeracoke   inlet  to   a  due 
south-east  line  drawn  from  Harbor  island  to  the  sea  ;  the  third 
from  said  line  to  a  due  south-east  line  drawn  from  Shell  point, 
on  Barker's  island,  to  the  sea ;  the  fourth  from  the  last-men- 
tioned line  to  Old  Topsail  inlet;  the  fifth  from  Old  Topsail 
inlet  to  the  Onslow  county  line:  the  county  of  Onslow  into 
two  districts  ;  the  first  from  Bogue  inlet  to  New  River  inlet ; 
the  second  from  New  River  inlet  to  the  New  Hanover  line : 


Ch.^.   120.]  WRECKS.  615 

the  county  of  New  Hanover  into  two  districts ;  the  first  from 
the  Onslow  county  line  to  Deep  inlet ;  the  second  from  Deep 
inlet  to  the  Brunswick  county  line  :  the  county  of  Brunswick 
into  two  districts ;   the  first  from  New  inlet  to    Lockwood's 
Folly :  the  second  from  Lockwood's  Folly  to  the  South  Caro- 
lina line :  and  the  county  court  of  Hyde  county  (a  majority  g'^^^'^'y^"'"  j^^. 
of  the  justices  being  present)  shall  have  power,  at  the  first  J  ^^.^fjj  ^v 
term  of  said  court  held  after  the  first  day  of  January  in  every  j,''^^!]'^- «■  ^ 
year,  to  lay  off  their  county  into   such  wreck  districts  as  to  ^gi^^  cf'ssj  s. 
them  may  seem  right  and  proper.  i- 1'^- 

2.  The  county  courts,  in  which  said  wreck  districts  are  lo-  ^f°^'^™f]°^'j;;^'° 
cated,  shall  appoint,  whenever  it  may  be  necessary,  a  commis-  poiuted  by 
sioner  of  wrecks  for  each  district,  who  shall  hold  his  office  for  ™;;'?[7^,^°^;';[;,^ 
two  years,  and  shall,  at  the  time  of  his  appointment,  enter  into  oath.  — R.  S. 
bond  with  good  security  in  the  sum  of  fifteen  thousand  dollars,  <=•  123,  s.  2. 
payable   to  the   State  of  North  Carolina,  and  conditioned  for 

the  faithful  performance  of  his  duties  as  commissioner  of 
wrecks ;  which  bond  shall  be  deposited  in  the  oflice  of  the 
clerk  of  the  county  court  for  safe-keeping,  and  may  be  sued 
upon  by  any  person  aggrieved  by  the  neglect  or  misconduct 
of  such  commissioner.  Before  entering  on  the  duties  of  his 
office,  the  commissioner  shall,  before  the  court  that  appointed 
him,  take  the  oaths  prescribed  for  the  qualification  of  public 
officers,  and  the  oath  of  office. 

3.  Each  commissioner  shall  reside  in  the  district  for  which  ^°jj?^'j'^|,"„t 
he  is  appointed,  unless  separated  by  navigable  waters,  and  to  be  pilot,  or 
then  at  a  distance  not  exceeding  three  miles  from  such  dis-  °?^"_^^'^^|_ 
trict;  and  no  person,  who  shall  hold  any  office  or  deputation  0.123,  s.  2, 3. 
under  the  United  States,  or  who  is  a  pilot,  shall  act  as  a  com-  -^^**'  <=•  ^^' 
missioner  of  wrecks. 

4.  The  commissioners,   on  the   earliest   intelligence  given.  Their  duty 
that  any  ship  or  other  vessel  is  stranded,  or  in  danger  of  being  ■^'^danger!^  ^ 
stranded,  shall  command  any  sheriff  or  constable  nearest  the 

coast  where  such  ship  or  other  vessel  shall  be,  to  summon  as 
many  men  as  shall  be  thought  necessary  to  the  assistance   of 
such  ship  or  vessel,  who  shall  be  under  the  direction  of  the 
master  or  owner  :  and  all  persons,  except  commissioners,  who  S^l™rs  to  be 
shall  assist  in  preserving  any  ship  or  other  vessel  in  distress,  P'"  " 
or  their  cargoes,  shall,  within  forty  days,  be  paid  a  reasonable 
reward  by  the  commander  or  owner  of  the  ship  or  vessel  in 
distress,  or  by  the  merchant,  whose  vessel  or  goods  shall  be 
saved  ;  and,  in  default  thereof,  the  vessel  or  goods  shall  remain 
in  the  custody  of  the  commissioners  or  salvors,  until  all  rea- 
sonable charges  be  paid,  or  security  given  for  that  purpose  to 
the  satisfaction   of  the  parties ;  and  in  case  the  parties  shall  ^^'J^'J^j^'^y'^gf. 
disagree,  touching  the  amount  of  the  reward  to  be  paid  to  the  eVecs, 'if  parties 
persons  employed,  the  commander  of  the  vessel  saved,  or  the  Jisagiee. 
owner    of   the    goods,   or  merchant   interested,    or  his  agent, 
shall  choose  one  indifferent  person,  and   also  the  salvors  shall 
nominate  one  other,  who  shall  adjust  and  ascertain  the  same  ; 
and  if  the  persons  thus  chosen  cannot  agree,  they  shall  choose 


616  WRECKS.  [Chap.  120. 

one  other  indifferent  person  as  umpire  to  decide  between  them  ; 
Snperior  court  and  if  such  adjustment  shall  be  unsatisfactory  to  either  nartv. 
awiVrd.  — R.  s.  "6   shall  declare  his  dissent;   and  thereupon  the  said  award 
isiri'DsTs  ^'^^"   ^^  returned   to  the   next  superior  court  of  the   county 
<''■•'  '^-  ■  where  the  same  was  made,  and  the  court  may  cause  the  same 
to  be  reexamined,  and  pronounce  such  judgment  thereon  as 
they  may  deem  just :  and  in  the  mean  time,  the  commissioner 
of  wrecks  shall  retain  in  his  hands,  in  order  to  satisfy  said 
judgment,  the  amount  awarded  by  the  referees  or  umpire. 
Commissioners      5.    The  commissioner  shall  be  the   only  proper  person  to 
S,  sen'&cT*^'  ^^^^  charge  of,  advertise,   or  sell,   any  vessel,  cargo,  or  other 
wrecked  prop-  Wrecked  property  that  may  be  stranded  or  cast  on  shore  in  his 
"'^y-  district.     Provided,  that  the  captain,  owner,  merchant,  or  con- 

signee, or  their  agent  may,  during  the  absence  of  the  com- 
missioner, or  if   he  refuse  to  act,  take  charge   of,   or  sell  or 
remove  such   vessel,  cargo,   or  other  wrecked  property  ;  and 
To  render  ac-    each  commissioner  shall  provide  himself  with  books,  and  shall 
count  of  sales,   record  in  them  all  such  sales  by  him  made,  and  shall  deliver 
to  the  captain,  owner,  or  merchant,  or  other  person  concerned, 
a  true  account  of  all  sales  which  shall  be  made  ;  and   every 
commissioner  shall  receive  for  selling  any  wrecked  property, 
Compensation,  five  per  cent.  On  the  amount  of  sales :  and  in  case  of  the  re- 
Zl-'isirfc:  '^o^'^^  of  any  wrecked  property  by  the  owner,  merchant,  con- 
58,  s.  4.       '   ■  signee,  or  his  agent,  from   the  custody  of  any  commissioner, 
without  a  sale,  then  such  commissioner  shall  receive  two  and 
and  a  half  per  cent,  on  the  amount  of  the  value  of  such  prop- 
erty so  removed  ;  which  amount  shall   be   ascertained  in  the 
same  manner  as  the  amount  of  the  reward  to  be  paid  to  the 
salvors,  as  provided  in  the  preceding  section. 
tisedM'mv"]on.r      ^^    "^'i^n    any  commissioner  shall  undertake    to    sell    any 
and  where. —"  wrecked    Or    stranded    property,    he    shall    advertise    the    sale 
f'  ^'ilil'^^'r;,  thereof,  not  less  than  twenty  nor  exceeding  thirty  days,  at  the 

D>  "^  1044,  C.  JO,  i-U  1  111  ii«i  J       ' 

s.  6.  court  house  door,  and  at  other  public  places  in  three  captain's 

districts  in  his  county,  and  should  said  property  be  adjudged 
above   the  value  of  one  thousand  dollars,  he  shall  advertise 
the  same  in  some  newspaper  (if  any),  and  at  one  other  public 
place  of  the  towns  in  the  federal  district  of  which  his  county 
forms  a   part.     Provided,  hoivever,  that  the  commissioners  of 
the  first  and  second  wreck  districts  in  the  county  of  Currituck, 
may  advertise  in  some  newspaper  published  in  Norfolk,  Vir- 
ginia, in  cases  where  they  are  required  to  advertise  in  a  news- 
Howtoproceed  paper.     Provided  furlher,  that  in   case   the  property  is   in   a 
il'damngi'ng.-  damaged  state,  the  commissioner  may  appoint  two  disinter- 
1854,  c.°  ested  merchants,  to  survey  the  same,  and   upon  their  recom- 

mendation, may  sell  by  advertising  for  ten  days  ;   and  the  com- 
missioner   shall    pay  the  merchants    so    appointed    a   reason- 
able compensation,  to  be  retained  by  him  out  of  the  proceeds 
of  sale. 
Commiss'rnot       7.    No  Commissioner  shall,  in  any  case,  be  entitled  to  ?<^- 
Noper.'onTJf'''  ^agc  Oil  property  saved;  and  for  the  discharge  of  all  the  duties 
interfere  with    which  may  be  imposed  on  him,  he  shall  be  entitled  to  receive 


Chap.  120.]  wrecks.  617 

only  the  commissions  allowed  him  by  this  chapter.  And  any  iiis  rights. — 
person  who  shall  interfere  with  the  rights  and  privileges  of  any  ^^'^^>''-^^<^-^- 
commissioner,  shall  be  liable  to  him  for  such  damages  as  he 
shall  sustain,  by  reason  of  such  interference.  Provided,  that 
the  commissioner,  when  such  person  may  have  been  employed 
in  his  absence,  or  in  case  of  his  refusal  to  act,  shall  tender  to 
the  person  thus  engaged,  a  reasonable  compensation  for  the 
trouble  and  expense  the  person  thus  employed  may  have  in- 
curred. 

8.  If  any  vessel  or  other  property  be  cast  ashore,  within  the  When  there  is 
limits  of  any  district,  no   person   being   present  to  claim  the  p^^^j^^i^^j"^" 
same  as  owner,  the  commissioner  of  such  district  shall  take  i"g.  what  to  be 
possession  thereof,  and  cause  a  true  description  of  the  marks, 
numbers,  and  kinds  of  such  goods  to   be  advertised  in  one  or 

more  public  gazettes,  for  the  space  of  eight  weeks ;  and  if  no 
person  shall  claim  the  same  within  twelve  months,  public  sale 
shall  be  made  thereof,  but  if  perishable,  the  goods  shall  be  sold 
after  being  advertised  as  hereinbefore  directed;  and  after  com-  Goods  sold  and 
missions  and  all  reasonable  charges  are  deducted,  the  residue  county  court.  " 
of  the  money,  with  an  account  of  the  whole,  he  shall  transmit 
to  the  office  of  the  county  court  of  the  county  in  which  such 
vessel  may  be  stranded  or  goods  saved,  and  the  clerk  shall 
make  a  record  and  keep  an  account  of  the  same,  for  the  ben- 
efit of  the  owner,  who,  upon  proof  of  his  property,  to  the  sat- 
isfaction of  the  commissioner  associated  with  two  justices, 
shall,  by  their  warrant  or  order,  receive  the  same,  paying  to 
the  clerk  of  said  court  one  per  cent,  for  his  trouble  ;  and  should  V  ^°*-  •^i"""':'^' 

,    ,  f^      .  ,  .  1  1         ^  1       "''  ^^^^  year,  to 

no  person  claim  the  same  withm  a  year  and  a  day  trom  the  belong  to  pub- 
date  of  the  advertisement,  then  the  clerk,  holding  such  money,  g'^g'^"''?,?;" 
shall  transmit  the  same,  after  deducting  one  per  cent,  for  his 
trouble,  to  the  treasurer  of  the  State,  for  the  use  of  the  State. 

9.  Whfen  any  person  shall  find  any  stranded  property  on  or  ^™'^^''*  °'^, 
near  the  seashore,  and  no  owner  appears  to  claim  the  same,  erty,  to  notify 
he  shall,  as  soon  as  possible  after  saving  it,  give  information  commissioner. 
to  the  nearest 'commissioner  of  ^VTecks,  and  to  him  deliver  the 

same,  for  which  he  shall  be  entitled  to  his  reasonable  salvage, 
to  be  ascertained  in  manner  before  directed  ;  and  should  any 
person  finding  stranded  goods  or  other  property  as  aforesaid.  Penalty  for 
conceal  them,  or  convert  the  same  to  his  own  use,  or  fail,  for  ^"^''■'''"S '_t^„ 
ten  days  thereafter,  to  give  information  thereof  to  the  nearest  s.  8. 
commissioner  of  wrecks  for  his   county,  he  shall  pay  to  the 
commissioner,  discovering  the  same,  five  times  the   value  of 
such  property,  to  be  recovered  before  any  jurisdiction   having 
cognizance  thereof. 

10.  If  any  person  shall  find  any  stranded  goods  or  property,  ceajin'^s'trand- 
on  or  near  the  seashore,  and  shall,  secretly,  or  without  notice  ed  godTis 

of  such  finding  given  to  the  commissioner,  take  the  same  into  on"vco,fv!— li. 
his  possession  with  the  intent  to  defraud  the  owner  or  other  S.  c.  123,' s.  9. 
person  of  the  said  property,  or  any  interest  therein  ;  or  if,  hav- 
ing taken  possession  of  such  goods  or  property,  without  such 
intent,  he  shall  afterwards,  with  such  fraudulent  intent  conceal 
52* 


618 


Embezzlei's,  or 
receivers  of 
such  goods, 
punished  as  for 
larceny,  &c. — 
R.S.c".  123,8.9. 

Penalty  on 
comm'rs  for 
abuse  of  trust. 
'  —  R.  S.  c.  123, 

s.  10. 


On  persons  re- 
fusing to  aid 
in  saving  ves- 
sels, &c. 
bummons 
proved  by 
eomm'r.  —  K. 
S.  c.  123,  s.  10, 


Finders  of 
wrecked  prop- 
erty at  sea,  to 
deliver  it  to 
eomm'r.  — R. 
S-  c.  123,  s.  11 


CONCERNING   THE   REVISED    CODE.      [ClIAP.    121. 

the  same,  or  fail  to  give  notice  to  the  commissioner,  he  shall 
be  deemed  to  have  stolen  the  same  goods  or  other  property; 
and  the  said  goods  and  property  shall  be  deemed  and  held,  as 
to  all  persons  and  for  all  purposes,  to  have  been  stolen. 

11.  If  any  person  shall  embezzle,  steal,  or  receive,  knowing 
the  same  to  have  been  embezzled  or  stolen,  any  such  goods  or 
property,  he  shall  forfeit  five  times  the  value  of  the  same  to 
the  commissioner;  and  on  conviction  thereof  shall  suffer  as  if 
convicted  of  larceny. 

12.  If  any  commissioner,  by  fraud  or  wilful  neglect,  abuse 
the  trust  reposed  in  him,  he  shall  forfeit  and  pay  treble  dariia- 
ges  to  the  party  aggrieved  thereby,  to  be  recovered  by  action 
on  the  case ;  and  shall  thereafter  be  incapable  of  acting  as  a 
commissioner. 

13.  If  any  sheriff',  constable,  or  other  person,  summoned  as 
hereinbefore  provided,  shall  refuse  or  neglect  to  give  the  assist- 
ance required  for  the  saving  any  vessel  or  her  cargo,  he  shall 
forfeit  and  pay  the  sum  of  ten  dollars,  to  the  commissioner 
ordering  such  duty.  And  such  commissioner,  on  trial  for  the 
recovery  of  the  same,  may,  by  his  own  oath,  prove  the  sum- 
mons of  such  person. 

14.  Whenever  any  property  shall  be  found  on  board  any 
vessel  at  sea,  which  has  been  wrecked,  or  has  been  abandoned 
by  the  crew,  and  the  property  is  afterwards  brought  into  the 
State,  the  person  in  whose  possession  the  same  may  be,  shall 

'  deliver  it  to  the  commissioner  of  wrecks  of  the  district,  into 
which  said  property  may  be  brought,  to  be  disposed  of  as 
stranded  property. 


Sect.  5.   Owner  has  right  to  take  possession, 
wreck  sale,  18  Ire.  394. 


Ire.  100.    Risht  of  way  to  purchaser  at 


CHAPTER    121. 


CONCERNING  THE  REVISED   CODE. 


Section 

1.  Revised  code,  -when  to  t.ake  effect. 

2.  Former  acts  on  subjects  embraced  in 

revised  code,  repealed  after  January 
1,  1856. 

3.  Repeal  not  to  affect  rights  accrued,  or 

suits  coiinnenced. 
i.  Effect    on    oflcnces    connnitted,   and 

penalties  incurred. 
5.  On  suits  and  prosecutions  commenced 

for  offences. 

8.  Repealed  acts  not  revived  thereby. 

7.  Effect  of  repeal  on  persons  holding 
offices. 

9.  Wliat  acts  not  repealed. 


Section 
9.  Revised  code,  how  published.  Undor 
superintendence  of  commissioners. 
Chapters  alphabetically  arranged. 
To  contain  nets  passed  at  this  ses- 
sion. Also  federal  constitution,  State 
constitution,  declaration  of  rights, 
Slecklenburg  declaration  of  inde- 
pendence, laws  of  Congress  for  cer- 
tifying records,  and  naturalizing  for- 
eigners. 

10.  Ten  thousand  copies  to  bo  published. 

11.  Superintendents  to  bo  paid. 

12.  Revised  code  to  be  evi<lcnco  of  the  law. 
18.  Copies,  how  distributed. 


Chap.  121.]     concerning  the  revised  code.  619 

1.  All  the  provisions  contained  in  the  chapters  revised  and  Kevised  code, 

.    .  ■'  •      .  1  i     1    L       ii  ,  when  to  take 

reported  by  the  commissioners,  and  enacted  by  the  present  eivect. 
session  of  this  General  Assembly,  and  known  as  the  "  Revised 
Code,"  shall  take  effect  and  go  into  operation  on  the  first  day 
of  January,  in  the  year  one  thousand  eight  hundred  and  fifty- 
six,  except  only  such  parts  thereof,  as  to  which  a  different  pro- 
vision is  expressly  made  therein,  and  the  following  named 
chapters,  which  shall  take  effect  from  and  after  thirty  days 
after  the  rise  of  this  session  of  the  General  Assembly,  namely: 
the  chapters  entitled  "  Asylums,"  "  Entries  and  Grants,"  "  Lit- 
erary Fund  and  Common  Schools,"  "  Public  Debt,"  "  Public 
Printing,"  "  Revenue,"  "  Salaries  and  Fees  ;  "  and  the  ninety- 
fourth  section  of  the  chapter  entitled  "  Militia." 

2.  All  acts  and  parts  of  acts  passed  before  the  present  ses-  Former  acts  on 
sion  of  this  General  Assembly,  the  subjects  whereof  are  revised  bmied'in  ™"- 
and  reijnacted  in  the  revised  code,  or  which  are  repugnant  to  vised  code,  re- 
the  provisions  therein  contained,  are   hereby  declared  to  be  J^J, ''j  1S56. 
repealed,  and  of  no  force  and  effect  from  and  after  the  first  day 

of  January,  in  the  year  one  thousand  eight  hundred  and  fifty- 
six,  with  the  exceptions  and  limitations  hereinafter  mentioned. 

3.  The  repeal  of  the  acts  mentioned  in  the  preceding  section  Kepeai  not  to 

1     11         i      tv     i  i    1  •    1  i.  •  1    aflectrigrhtsae- 

shall  not  ariect  any  act  done,  or  any  right  accruing,  or  accrued,  (,,.ued,  or  suits 
or  established,  or  any  suit  or  proceeding  had  or  commenced  in  commenced. 
any  case  before  the  time  when  such  repeal  shall  take  effect ; 
but  the   proceedings  in  every  such   case   shall  be  conformed, 
where  necessary,  to  the  provisions  of  the  revised  code. 

4.  No  offence  committed,  and   no   penalties   or  forfeitures  Effect  on  of- 
incurred,  under  any  of  the  acts  hereby  repealed,  and  before  the  ted,  and  penal- 
time  when  such  repeal  shall  take  effect,  shall  be  afl'ected  by  the  ties  incurred. 
repeal,  except  that  when  any  punishment,  penalty,  or  forfeiture 

^all  have  been  mitigated  by  the  provisions  of  the  revised  code, 
such  provisions  may  be  extended  and  applied  to  any  judg- 
ment to  be  pronounced  after  the  repeal. 

5.  No  suit  or  prosecution  pending  at  the  time  of  the  repeal.  On  suits  and 

.  a-  -iiirii  c  li      prosecutions 

for  any  onence  committed,  or  tor  the  recovery  oi  any  penalty  commenced  for 
or  forfeiture  incurred,  under  any  of  the  acts  hereby  repealed,  oScnces. 
shall  be  affected  by  such  repeal,  except  that  the  proceedings  in 
such  suit  or  prosecution  shall  be  conformed,  when  necessary, 
to  the  provisions  of  the  revised  code.  , 

6.  No  act  or  law  which  has  heretofore  been  repealed,  shall  Hepei^ied  acts 
be  revived  by  the  repeal  contained  in  this   chapter,  of  any  of  thereby. 
the  acts  hereinbefore  mentioned. 

7.  All  persons  who,  at  the  time  when  the  said  repeal  shall  Effect  of  repeal 
take  effect,  shall  hold  any  otfice  under  any  of  the  acts  hereby  holding  offices. 
repealed,  shall  continue   to   hold  the   same  according   to  the 

tenure  thereof,  except  those  offices  which  may  have  been 
abolished,  and  those  as  to  which  a  difi'erent  provision  shall 
have  been  made  by  the  revised  code. 

8.  No  act  of  a  private  or  local  nature,  no  act  containing  a  wiiat  acts  not 

c  1  ■    -I  r  1  1-         repealed. 

grant  oi  corporate  privileges  tor  any  purpose,  no  act  granting 
privileges  or  imposing  duties  in  any  particular  county  incon- 


620  CONCERNING   THE  REVISED    CODE.      [ChaP.  121. 

sistent  with  the  general  provisions  of  law,  no  act  regulating 
the  time,  place,  and  manner  of  elections,  musters,  or  reviews  in 
any  county,  no  act  relating  to  fisheries  in  any  particular  sec- 
tion of  the  State,  no  act  providing  for  the  support  of  the  poor 
in  any  county,  no  act  relating  to  the  boundary  of  the  State 
and  its  several  counties,  no  act  ceding  the  lands  of  this  State 
to  the  general  government,  and  no  act  relative  to  the  corporate 
powers  of  the  trustees  of  the  University,  shall  be  construed  to 
be  repealed  by  the  second  section  of  this  chapter. 
Rcvisci  co,io  9_  'I'he  revised  code  shall  not  be  published  in  the  usual 
pamphlet  form,  (except  those  chapters  hereinbetore  directed  to 
take  effect  thirty  days  after  the  rise  of  this  session,)  with  the 
other  acts  of  the  present  session,  but  shall  be  published  in  a 
Under  saperin-  volume,  under  the  superintendence  and  direction  of  two  com- 
comnilssioncrs.  missioners  to  be  appointed  by  the  governor,  who  in  case  of  a 
vacancy  shall  fill  the  same ;  the  superintendents  shall  procure 
the  same  to  be  done  in  good  style,  upon  the  most  economical 
terms,  giving  a  preference,  when  the  style  and  terms  of  printing 
are  equal,  to  the  printers  of  the  State,  and  shall  take  bond 
with  good  security  for  the  faithful  performance  of  the  work  of 
Chapters  al-  those  who  may  undertake  the  same.  The  chapters  shall  be 
arrangecl?  ^  arranged  in  the  pubhcation  in  alphabetical  order,  (omitting  the 
enacting  title  and  clause  to  each  act,)  according  to  their  titles, 
with  marginal  references  to  the  decisions  of  the  supreme  court 
upon  their  subject-matter,  and  with  a  full  index.  They  shall 
be  preceded  by  the  following  title,  preamble,  and  enacting 
clause :  "  An  act  for  revising  and  consolidating  the  public 
and  general  statutes  of  the  State." 

"  Whereas,  it  is  expedient  that  the  public  and  general  stat- 
utes of  the  State  should  be  consolidated  and  arranged  in  proper 
titles,  chapters,  and  sections ;  and  that  the  whole  body  of  the 
laws  should  be  rendered  as  concise  and  intelligible  as  possible ; 
therefore.  Be  it  enacted  by  the  General  Asscmblij  of  the  State 
of  North  Carolina,  and  it  is  hereby  enacted  by  the  authority  of 
the  same,  in  manner  and  form  following,  that  is  to  say : "  — 
To  contain  acts  In  the  volume  shall  also  be  published  the  acts  of  a  public  and 
'  general  nature  passed  at  this  session  and  not  included  in  the 
revised  code,  incorporating  the  same  as  far  as  practicable  into 
the  chapters  undq^-  the  appropriate  titles,  and  excluding  from 
such  publication  all  which  grant  or  modify  corporate  privileges, 
Also,  federal     or  relate  to  Cherokee  lands.     And  there  shall  likewise  be  pub- 
Sto^e' con'stitu-  I'shed  in  the  volume,  the  constitution  of  the  United  States,  the 
tion,  dcciara-    constitution  and  declaration  of  rights  of  this  State,  the  Mcck- 
Meckicnburg    lenburg  declaration  of  independence,  with  the  short  narrative 
independence,  preceding  the  same ;  the  act  of  Confess  approved  May  twen- 

lawsofCon-      T       •    ii  j.i  i  i         i       i  i       •      i  I  t 

gress,  ceitiiy-  ty-sixth,  oue  thousand  seven  hundred  and  nmety,  and  an  act 
ing  records,  supplementary  thereto,  approved  March  twenty-seventh,  one 
thousand  eigiit  hundred  and  four,  prescribing  the  mode  in 
which  records  and  judicial  proceedings  in  each  State  shall  be 
authenticated,  so  as  to  take  effect  in  every  other  State ;  and 
the  several  acts  of  Congress  now  in  force  for  the  naturalization 
of  foreigners. 


Chap.  121.]     concerning  the  revised  code.  621 

10.  There  shall  be  published,  of  the  said  revised  code,  ten  Ten  thousand 
thousand  copies,  the  copy-rigiit  whereof  shall  be  secured  to  pXIshed!"^ 
the  State  by  the  superintendents  ;  and  the  expense  of  preparing, 
printing,  publishing,  binding,  and  distributing  said  copies,  shall 

be  paid  by  the  piiblic  treasurer  on  the  warrant  of  the  governor, 
founded  on  requisitions  made  from  time  to  time  by  the  super- 
intendents. 

11.  The  volume  shall  be  published  as  speedily  as  practica-  Superintend- 
ble;  and  when  completed  and  delivered  to  the   order  of  the  ™'' '° ''^  P"""' 
governor,  the  superintendents  shall  receive  such  compensation 

as  to  the  governor  shall  seem  just  and  reasonable,  to  be  paid 
by  the  public  treasurer  upon  his  warrant. 

12.  The  copies  of  the  revised  code  which  shall  be  printed  as  Revised  code  to 
aforesaid,  shall  be  received  as  evidence  of  the  law  before  all  {'i.Viaw!"''^  °^ 
tribunals,  and  in  all  places,  in  the  same  manner,  to  all  intents 

and  purposes,  as  the  originals  in  the  office  of  the  secretary  of 
State. 

13.  The  said  copies  when   completed  shall  be  distributed  ^.°P;?^'''°^ 
under  the  direction  of  the  governor  as  follows,  namely:  —  To 

the  library  of  the  Congress  of  the  United  States,  ten  copies; 
to  the  several  States  and  territories,  three  copies  each ;  to  the 
library  of  the  University  of  North  Carolina,  three  copies ;  to 
the  two  literary  societies  of  the  University,  two  copies  each ; 
to  the  governor,  treasurer,  secretary  of  State,  and  comptroller, 
two  copies  each,  for  the  use  of  their  respective  offices ;  to  the 
State  library,  five  copies ;  to  the  clerks  of  both  houses  of  the 
General  Assembly,  ten  copies  each,  for  the  use  of  their  respec- 
tive houses ;  to  the  clerks  of  the  supreme  court,  the  clerks  of 
the  several  superior  and  county  courts,  and  the  clerks  and 
masters  in  equity,  one  copy  each,  for  the  use  of  their  respective 
courts;  to  the  judges  of  the  supreme  and  superior  courts,  one 
copy  each;  to  the  members  of  the  present  General  Assembly, 
who  shall  not  be  justices  of  the  peace  on  the  first  day  of  Janu- 
ary, one  thousand  eight  hundred  and  fifty-six,  one  copy  each  ; 
and  to  the  justices  of  the  peace  of  the  several  counties,  one 
copy  each.  All  the  remaining  copies  shall  be  sold  for  the 
benefit  of  the  State,  by  such  person,  in  such  manner,  and  upon 
such  terms  as  the  governor  shall  direct  and  appoint. 

13.    This  act  shall  be  in  force  from  and  after  its  ratification. 


APPENDIX. 


AN     ACT 

TO  PRESCRIBE  THE  MODE  IN  WHICH  THE  PUBLIC  ACTS,  RECORDS,  AND 
JUDICIAL  PROCEEDINGS  IN  EACH  STATE,  SHALL  BE  AUTHENTICATED 
SO  AS  TO  TAKE  EFFECT  IN  EVERY  OTHER  STATE. 

The  acts  of  the  legislatures  of  the  several  States  shall  be  Laws,  records, 
authenticated  by  having  the   seal  of  their  respective    States  p"oeiedings  of 
affixed  thereto.     The  records  and  judicial  proceedings  of  the  the  sererui 
courts  of  any  State,  shall  be  proved  or  admitted  in  any  other  ,j/^„j,je"X  ° 
court  within  the    United    States,  by  the    attestation    of   the  c!ited;^rtu^d  Uie 
clerk,  and  the   seal  of  the  court  annexed,  if  there   be   a  seal,  jj^y  26,"i79o! 
together  with  a  certificate  of  the  judge,  chief  justice,  or  presid- 
ing magistrate,  as  the  case  may  be,  that  the  said  attestation  is 
in  due  form.     And  the  said  records  and  judicial  proceedings 
authenticated  as  aforesaid,  shall   have  such  faith  and  credit 
given  to  them  in  every  court  within  the  United  States,  as  they 
have  by  law  or  usage,  in  the  courts  of  the  State,  from  whence 
the  said  records  are  or  shall  be  taken. 

AN  ACT  SUPPLEMENTARY  TO  THE  FOREGOING  ACT. 

Sect.  1.  All  records  and   exemplifications  of  office  books,  Eecorci?,&c.,  of 
which  are  or  may  be  kept  in  any  public  office,  of  any  State,  Lw^au'thenti- 
not  appertaining  to  a  court,  shall  be  proved  or  admitted  in  any  ^J*'!['gQ^'^'*'''^'' 
other  court  or  office  in  any  other  State,  by  the  attestation  of     ' 
the  keeper  of  the  said  records  or  books,  and  the  seal  of  his 
office  thereto  annexed,  if  there  be  a  seal,  together  with  a  cer- 
tificate of  the  presiding  justice  of  the  court  of  the  county  or 
district,  as  the  case  may  be,  in  which  such  office  is  or  may  be 
kept;  or  of  the  governor,  the  secretary  of  State,  the  chancellor, 
or  the  keeper  of  the  great  seal  of  the  State,  that  the  said  attes- 
tation is  in  due  form,  and  by  the  proper  officer ;  and  the  said 
certificate,  if  given  by  the  presiding  justice  of  a  court,  shall 
be  further  authenticated  by  the  clerk  or  prothonotary  of  the 
said   court,  who  shall  certify,  under  his  hand  and  the  seal  of 
his  office,  that  the  said  presiding  justice  is  duly  commissioned 
and  qualified ;  or  if  the  said  certificate  be  given  by  the  gover- 


6!i4 


APPENDIX. 


Mode  of  au- 
thenticating 
laws,  &c.,  in 
territories  tlie 
same.     March 
27,  1804. 


nor,  the  secretary  of  State,  the  chancellor  or  keeper  of  the 
great  seal,  it  shall  be  under  the  great  seal  of  the  State  in  which 
the  said  certificate  is  made.  And  the  said  records  and  exem- 
plifications, authenticated  as  aforesaid,  shall  have  such  faith 
and  credit  given  to  them  in  every  court  and  oiiice  within  the 
United  States,  as  they  have  by  law  or  usage  in  the  courts  or 
offices  of  the  State  from  whence  the  same  are,  or  shall  be 
taken. 

2.  All  the  provisions  of  this  act,  and  the  act  to  which  this 
is  a  supplement,  shall  apply  as  well  to  the  public  acts,  records, 
office  books,  judicial  proceedings,  courts,  and  offices  of  the 
respective  territories  of  the  United  States,  and  countries  sub- 
ject to  the  jurisdiction  of  the  United  States,  as  to  the  pub- 
lic acts,  records,  office  books,  judicial  proceedings,  courts,  and 
offices  of  the  several  States. 


Note.  —  Although  a  judgment  in  a  State  court,  is  not  to  be  regarded  in  the  court  of 
a  sister  State  as  a  foreign  judgment,  it  is  distinguishable  from  the  latter,  only  in  this, 
that  by  the  first  section  of  the  act  of  26th  May,  1790,  the  judgment  is  conclusive  on  the 
merits,  and  to  it  full  faith  and  credit  shall  be  given,  when  duly  authenticated.  By  the 
act,  the  judgment  is  made  a  debt  of  record,  not  examinable  on  its  merits.  To  give  it 
the  force  of  a  judgment  in  another  State,  it  must  be  made  a  judgment  there;  and  it  can 
be  executed  in  the  latter  only  as  its  laws  permit.  The  plea  of  the  statute  of  limitations, 
to  an  action  on  a  judgment  obtained  in  .another  State,  is  a  plea  to  the  remedy;  and  con- 
sequently, the  lexjori  must  prevail.  There  is  nothing  in  tlie  federal  constitution  which 
prohibits'  a  State  to  legislate  upon  the  remedy,  by  suit,  on  judgments  of  other  States,  if 
the  merits  be  left  unquestioned  ;  and  therefore  the  suit  must  be  brought  within  the 
period  prescribed  by  the  local  law,  or  it  will  be  barred. 

In  the  appropriation  of  the  assets  of  a  deceased  person,  the  judgment  of  another 
State,  on  whatever  subject  rendered,  ranks  as  a  simple  contract  debt.  McKlmoyle  f. 
Cohen,  13  Pet.  R.  312. 

An  exemphfication  of  an  act  of  the  legislature  of  a  State  under  the  great  seal  of  the 
State,  is  evidence,  though  not  attested  by  the  governor,  or  any  other  principal  olUcer  of 
the  State.  U.  S.  v.  Johns,  i  Dall.  412,  Craig  v.  Brown,  1  I'et.  362,  U.  S.  i\  Amedv, 
11  Wheat.  392. 

A  certificate  of  an  affidavit  taken  before  a  magistrate,  must  state  the  place  where 
the  affidavit  was  taken,  so  as  to  show  that  the  magistrate  Iiad  jurisdiction  to  adniinistcr 
the  oath.  If  the  place  be  omitted,  it  cannot  be  received  as  evidence  on  a  hearing  before 
a  court  of  the  United  States,  on  a  motion  to  commit  on  a  criminal  charge.  Nor  is  such 
omission  helped  by  the  certificate  being  dated  at  a  place  where  the  magistrate  had  ju- 
risdiction. U.  S.  V.  Burr,  96,  98.  A  record  certified  as  prescribed  by  article  4,  s.  1,  Fed. 
Const,  is  proof  of  the  judgment  of  as  high  a  nature,  as  the  inspection  of  the  record. 
Mills  V.  Duryee,  7  Cr.  484. 

The  judgment  of  a  State  court  has  the  same  credit,  validity,  and  effect,  in  any  State, 
which  it  has  in  the  State  where  it  was  pronounceil ;  and  whaterer  pleas  would  be 
good  in  a  suit  thereon  in  such  State,  and  no  otliors  can  be  pleaded  in  any  court  in  tho 
United  States.  Hampton  v.  McConnell,  3  Wlieat.  234;  Armstrong  f.  Carson's  ex'r,  2 
Uall.  302;  Green  «.  Sarmiento,  2  I'et.  C.  C.  Kcp.  74,  155,  484;  Mayhew  v.  Thatcher, 
6  Wheat.  129,  Sergt.  on  Con.  Law,  383,  for  authorities  in  State  courts.  As  to  the  efl'ect  of 
a  judgment  of  another  State,  see  Davidson  v.  Sharpe,  6  Ire.  14;  Pigotf.  Davis,  3  Hawks, 
23;  Irby  v.  Wilson,  1  D.  &  B.  Eq.  668;  Pickett!.  Johns,  1  Dev.  Kq.  123. 

For  the  mode  of  authenticating  the  statute  of  another  State,  see  State  v.  Cheek,  13 
Ire.  114;  McDougald  i'.  Smith,  11  Ire.  576;  State  v.  Jackson,  21>ev.  S63;  Stater.  Welsh, 
3  Hawks,  404. 

It  is  the  province  of  the  Court  to  decide  upon  the  existence  and  proper  construction 
of  tlie  statute  of  anotlier  State,  Moore  v.  Gwynn,5  Ire.  187.  What  the  law  of  another 
State  is,  when  not  contained  in  a  statute,  is  matter  for  the  jury.    lb. 


LAWS    OF   NATURALIZATION, 

PASSED  BY  THE  CONGRESS  OF  THE  UNITED  STATES,  AS  DIGESTED 
BY  THOMAS  F.  GORDON,  ESQ.,  AND  CORRECTED  BY  ALL  THE  LAWS 
PASSED   UP   TO   THE  FOURTH  OF   MARCH,  1855. 


625 


Article 

1.  Declaration  by  alien  previous  to  nat- 

uralization.    (Goi'don,  Art.  1488.) 

2.  Exception  as  to  aliens  residing  within 

the  United  States  before  29th  of  Jan- 
uary, 1795.     (1489.) 

3.  Exception  as  to  aliens  residing  within 

the  United  States  between  18th  of 
June,  1798,  and  14th  April,  1802. 
(1490.) 

4.  Further  provisions    respecting   such 

aliens.    (1491.) 

5.  Exception  as  to  aliens  residing  within 

the  United  States  between  14th 
April,  1802,  and  18th  June,  1812. 
(1492.) 


Article 

6.  Exception  as  to  alien  minors.    (1493.) 

7.  Oath  rerpiired  from  alien.     (1494.) 

8.  Court  to  be  satisfied  of  certain  quali- 

fications.    (1495.) 

9.  Renunciation    of   titles    and    orders. 

(1496.) 

10.  Provision  relative  to  widow  antl  chil- 

dren of  alien.    (1497.) 

11.  Minor  children  of  naturalized  citizens 

become  citizens,  when.     (1498.) 

12.  What  courts  may  administer  the  nat- 

uralization laws.    (1499.) 

13.  Five  years  i-esidence  necessary,  when. 

(1500.) 


Art.  1.  Any  alien  being  a  free  white  person,  may  be  admit- 
ted to  become  a  citizen  of  the  United  States,  or  any  of  them, 
on  the  following  conditions,  and  not  otherwise:  That  he  shall 
have  declared  on  oath  or  atBrmation  before  the  supreme,  supe- 
rior, district,  or  circuit  court  of  some  one  of  the  United  States, 
or  of  the  territorial  districts  of  the  United  States,  or  a  circuit 
or  district  court  of  the  United  States,  or  before  the  clerk  of 
either  of  such  courts,  (1)  two  (2)  years  at  least  before  his  ad- 
mission, that  it  was  bond  fide  his  intention  to  become  a  citi- 
zen of  the  United  States,  and  to  renounce  forever  all  allegi- 
ance and  fidelity  to  any  foreign  prince,  potentate.  State,  or 
sovereignty  whatever,  and  particularly  by  name,  the  prince, 
potentate.  State,  or  sovereignty  whereof  such  alien  may  at  the 
time  be  a  citizen  or  subject.  (3) 

2.  Any  alien  who  was  residing  within  the  limits,  and  under 
the  jurisdiction  of  the  United  States  before  the  twenty-ninth 
day  of  January,  one  thousand  seven  hundred  and  ninety-five, 
may  be  admitted  to  become  a  citizen,  on  due  proof  made  to 
some  one  of  the  courts  aforesaid,  that  he  has  resided  two  years 
at  least  within  and  under  the  jurisdiction  of  the  United  States, 
and  one  year  at  least  immediately  preceding  his  a|5plication, 
within  the  State  or  territory  where  such  court  is  at  the  time 
held ;  and  on  his  declaring  on  oath  or  affirmation,  that  he  will 
support  the  constitution  of  the  United  States,  and  that  he 
doth  absolutely  and  entirely  renounce  and  abjure  all  allegi- 
ance and  fidelity  to  any  foreign  prince,  potentate.  State,  or 
sovereignty  whatever,  and  particularly,  by  name,  the  prince, 
potentate,  State,  or  sovereignty  whereof  he  was  before  a  citi- 
53 


Declaration  by 
alien  previous 
to  naturaliza'n. 


(1)  Act  May 
26,  1824,  s.  3. 

(2)  lb.  s.  4. 


(3)  Act  14th 
April,  1802. 
Exception  as 
to  aliens  resid- 
ing within  the 
U.  Slates  be- 
fore 29th  Jail. 
1795. 


626 


zen  or  subject ;  and,  moreover,  on  its  appearing  to  the  satis- 
faction of  the  courts  that  during  the  said  term  of  two  years, 
he  has  behaved  as  a  man  of  good  moral  character,  attached  to 
the  constitution  of  the  United  States,  and  well  disposed  to  the 
good  order  and  happiness  of  the  same ;  and  where  the  alien, 
applying  for  admission  to  citizenship  shall  have  borne  any 
hereditary  title,  or  been  of  any  of  the  orders  of  nobility  in  the 
kingdom  or  State  from  which  he  came,  on  his  moreover  mak- 
ing in  the  court  an  express  renunciation  of  his  title  or  order  of 
nobility,  before  he  shall  be  entitled  to  such  admission  :  all  of 
(1)  Act  April  which  proceedings  required  in  this  proviso  to  be  performed  in 
14,1802,3.1.     the  court,  shall  be  recorded  by  the  clerk  thereof.  (1) 

Exception  as         3.  From  this  condition  (Art.  1),  is  exempted  any  alien  be- 
to  aliens  resid-  .  J.  ,.,  \  ■"       .J.     r  J 
inginU.  States  ing  a  tree  white  person,  who  was  residing  within   the  limits 

JmiTms^'ttlid  ^"^  under  the  jurisdiction  of  the  United  States  at  any  time 
14th  April,'  between  the  eighteenth  day  of  June,  1798,  and  the  fourteenth 
?2)*  Act  March  ^^^  °^  April,  1802,  and  who  has  continued  to  reside  within 
28, 1804,  s.  1.    the  same.  (2) 

Further  pro-  4.  Nothing  in  the  first  section,  act  22d  March,  1816,*  shall 
ing  sucraUens"  ^®  construed  to  exclude  from  admission  to  citizenship,  any 
'  free  white  person  who  was  residing  within  the  limits  and  un- 
der the  jurisdiction  of  the  United  States  at  any  time  between 
the  eighteenth  day  of  June,  one  thousand  seven  hundred  and 
ninety-eight,  and  the  fourteenth  day  of  April,  one  thousand 
eight  hundred  and  two,  and  who,  having  continued  to  reside 
therein  without  having  made  any  declaration  of  intention  be- 
fore a  court  of  record  as  aforesaid,  may  be  entitled  to  become 
a  citizen  of  the  United  States  according  to  act  26th  of  March, 
1804.  Whenever  any  person  without  a  certificate  of  such 
declaration  of  intention  as  aforesaid,  shall  make  application  to 
be  admitted  a  citizen  of  the  United  States,  it  shall  be  proved 
to  the  satisfaction  of  the  court,  that  the  applicant  was  residing 
within  the  limits  and  under  the  jurisdiction  of  the  United 
States,  before  the  fourteenth  of  April,  one  thousand  eight  liun- 
dred  and  two,  and  has  continued  to  reside  within  the  same,  or 
he  shall  not  be  so  admitted.  And  the  residence  of  the  appli- 
cant, within  the  limits  and  under  the  jurisdiction  of  the 
United  States  for  at  least  five  years  immediately  preceding 
the  time  of  such  application,  shall  be  proved  by  the  oath  or 
afHrmation  of  citizens  of  the  United  States;  which  citizens 
shall  be  named  in  the  record  as  witnesses.  And  such  contin- 
ued residence  within  the  limits  and  under  the  jurisdiction  of 
the  United  States  when  satisfactorily  proved,  and  the  place 
or  places  where  the  applicant  has  resided  for  at  least  five 
years  as  aforesaid,  shall  be  stated  and  set  forth,  together  with 
the  names  of  such  citizens  in  the  record  of  the  court  admitting 
(3)ActMarch  ^he  applicant;  otherwise  the  same  shall  not  entitle  him  to  be 
22,  1816,  s.  2.  considered  and  deemed  a  citizen  of  the  United  States.  (3) 
to'a'hens'"eSi'd  ^'  '^^^^  ^"7  ^^^^^i  being  a  free  white  person,  who  was 
*  The  first  aection  of  act  23  J  March,  1816,  -was  repealed  by  act  24th  May,  1828. 


APPENDIX.  627 

residing  within  the  limits  and  under  the  jurisdiction  of  the  ing  within  the 
United  States,  between  the  foiu-teenth  day  of  April,  one  thou-  F'  ^^''^W:^^' 
sand  eight  hundred  and  two,  and  the  eighteenth  day  of  June,  one  April,  1802, 
thousand  eight  hundred  and  twelve,  and  who  has  continued  to  »°d^ is'h  June, 
reside  within  the  same,  may  be  admitted  to  become  a  citizen 
of  the  United  States,  without  having  made  any  previous  dec- 
laration of  his  intention  to  become  a  citizen.  Provided,  that 
whenever  any  person,  without  a  certificate  of  such  declaration 
of  intention,  shall  make  application  to  be  admitted  a  citizen 
of  the  United  States,  it  shall  be  proved  to  the  satisfaction  of 
the  court,  that  the  applicant  was  residing  within  the  limits  and 
under  the  jurisdiction  of  the  United  States,  before  the  eigh- 
teenth day  of  June,  one  thousand  eight  hundred  and  twelve, 
and  has  continued  to  reside  within  the  same,  or  he  shall  not 
be  so  admitted  :  and  the  residence  of  the  applicant  within  the 
limits,  and  under  the  jurisdiction  of  the  United  States,  for  at 
least  five  years  immediately  preceding  the  time  of  such  appli- 
cation, shall  be  proved  by  the  oath  or  affirmation  of  citizens  of 
the  United  States ;  which  citizens  shall  be  named  in  the  record 
as  witnesses :  and  such  continued  residence  within  the  limits 
and  under  the  jurisdiction  of  the  United  States,  w^hen  satis- 
factorily proved,  and  the  place  or  places  where  the  applicant 
has  resided  for  at  least  five  years,  as  aforesaid,  shall  be  stated 
and  set  forth,  together  with  the  names  of  such  citizens,  in  the 
I  record  of  the  court  admitting  the  applicant ;  otherwise  the 
same  shall  not  entitle  him  to  be  considered  and  deemed  a  citi-  2Vii28'f*2 
zen  of  the  United  States.  (1)  >       .  •   ■ 

6.  Any  alien,  being  a  free  white  person  and  a  minor,  under  Exception  as 
the  age  of  twenty-one  years,  who  shall  have  resided  in  the '°''"'°™'""*' 
United  States  three  years  next  preceding  his  arrival  at  the  age 

of  twenty-one  years,  and  who  shall  have  continued  to  reside 
therein  to  the  time  he  may  make  application  to  be  admitted  a 
citizen  thereof,  may,  after  he  arrives  at  the  age  of  twenty-one 
years,  and  after  he  shall  have  resided  five  years  within  the 
United  States,  including  the  three  years  of  his  minority,  be 
admitted  a  citizen  of  the  United  States,  without  having  made 
the  declaration  required  in  the  first  condition  of  the  first  sec- 
tion of  the  act  to  which  this  is  in  addition  (Art.  1),  three  years 
previous  to  his  admission.  Provided,  such  alien  shall  make 
the  declaration  required  therein  at  the  time  of  his  or  her  ad- 
mission ;  and  shall  further  declare,  on  oath,  and  prove  to  the 
satisfaction  of  the  court,  that,  for  three  years  next  preceding, 
it  has  been  the  bond  fide  intention  of  such  alien  to  become  a 
citizen  of  the  United  States  ;  and  shall,  in  all  other  respects,  (j,  ^ct  May 
comply  with  the  laws  in  regard  to  naturalization.  (2)  26, 1824,  s.  1. 

7.  An  alien  shall,  at  the  time  of  his  application  to  be  ad-  Oatii  required 
mitted,  declare,  on  oath  or  affirmation,  before  some  one  of  the  '"™™  ''''<^°- 
courts  aforesaid,  that  he  will  support  the  constitution  of  the 

United   States,  and  that  he  doth  absolutely  and  entirely  re- 
nounce and  abjure  all  allegiance  and  fidelity  to  every  foreign 
[  prince,  potentate,  State,  or  sovereignty,  whatever,  and  particu- 


628  APPENDIX. 

\ar\j,  by  name,  the  prince,  potentate,  State,  or  sovereignty, 
14  1802  s?i  wliereof  lie  was  before  a  citizen  or  subject ;  which  proceedings 
Con.  2.  shall  be  recorded  by  the  clerk  of  the  court.  (3) 

Court  to  be  g.    The  court  admitting  such  alien  shall  be  satisfied  that  he 

tain  quaiifica-   has  resided  within  the  United  States  five  years,  at  least,  and 
tions.  within  the  State  or  territory,  where  such  court  is  at  the  time 

held,  one  year  at  least ;  and  it  shall  further  appear  to  their 
satisfaction,  that,  during  that  time,  he  has  behaved  as  a  man 
of  a   good  moral  character,  attached  to  the  principles  of  the 
constitution  of  the  United  States,  and  well  disposed -to  the 
(4)  Act  April  good  order  and  happiness  of  the  same.     The  oath  of  the  ap- 
Con.'3.    '^    '  plicant  shall,  in  no  case,  be  allowed  to  prove  his  residence.    (4) 
Eenunoiation        9.    In  case  the  alien,  applying  to  be  admitted  to  citizenship, 
of  titles  and      shall   have  borne  any  hereditary  title,  or  been  of  any  of  the 
orders   of  nobility,  in  the  kingdom  or  State  from  which   he 
came,  he  shall,  in  addition  to  the  above  requisite.s,  make  an 
express  renunciation   of  his  title  or  order  of  nobility,  in  the 
court  to  which  his  application  shall  be  made,  which  renuncia- 
tion shall  be  recorded  in  the  said  court.     Provided,  That  no 
alien,  who  shall  be  a  native  citizen,  denizen,  or  subject  of  any 
country,  State,  or  sovereign,  with  whom  the  United  States 
14'  1802'  s^i"^  shall  be  at  war,  at  the  time  of  his  application,  shall  be  then 
Co'n.  4. '  "  '     admitted  to  be  a  citizen  of  the  United  States.   (1) 
Provision  reia-      10.    When  any  alien,  who  shall  have  complied  with   the 
and  chiTdrarof  conditions  specified  in  article  No.  1,  and  who  shall  have  pur- 
aliens,  sued  the  directions   prescribed  in  section  2,   Act  14th  April, 
1802,*  may  die,  before  he  is  actually  naturalized,  the  widow 
and  the  children  of  such  alien  shall  be  considered  as  citizens 
(2)  Act  March  ^^  ^'^"^  United  States;  and  shall  be  entitled  to  all  rights  and 
26th,  1804,  s.  2.  privileges  as  such,  upon  taking  the  oaths  prescribed  by  law.   (2) 
Minor  children      11.    The  children  of  persons  duly  naturalized  under  any  of 
citizen^be-^'^  the  laws  of  the  United  States,  or  who,  previous  to  the  passing 
come  citizens,   of  any  law  On  that  subject  by  the  government  of  the  United 
when.  States,   may  have   become  citizens   of    any  one  of  the  said 
States,  under  the  laws  thereof,  being  under  the  age  of  twenty- 
one  years,  at  the  time  of  their  parents  being  so  naturalized 
or  admitted  to  the  rights  of  citizenship,  shall,  if  dwelling  in 
the  United  States,  be  considered  citizens  of  the  United  States  ; 
and  the  children  of  persons,  who  now  are,  or  have  been,  citi- 
zens of  the  United  States,  shall,  though  born  out  of  the  limits 
and  jurisdiction  of  the  United  States,  be  considered  as  citizens 
of  the    United    States.     The    right    of   citizenship    shall   not 
descend  to  persons  whose  fathers  have  never  resided  within 
the   United  States.     And  no  person  heretofore  proscribed  by 
any  State,  or  who  has  been  legally  convicted  of  having  joined 
the  army  of  Great  Britain  during  the  war  of  the  Revolution, 
shall  be  admitted  a  citizen,  without  tiie  consent  of  the  legisla- 
ture of  the  State  in  which  such   person  was  proscribed.     Chil- 
dren of  persons  naturalized  before  the  14th  of  April,  1802, 

•  This  second  section  was  repealed  by  act  24th  May,  1828.    It  provided  for  the  regis- 
try of  the  alien. 


APPENDIX.  629 

under  age  at  the  time  of  their  parents'  naturalization,  were,  if '^)  ^gi'^P^' 
dwelling  in  the  United  States  on  the  14th  of  April,  1802,  to  campieii  v. ' 
be  considered  as  citizens  of  the  United  States.  (3)  6*0  "^Ttt'  "'' 

12.  Every  court  of  record,  in  any  individual  State,  having  what  court 
common  law  jurisdiction,  and  a  seal,  and  clerk  or  prothono- may  administer 
tary,  shall  be  considered  as  a  district  court  within  the  meaning  tioliaw""  "'^ 
of  the  naturalization  act ;  and  every  alien,  who  may  have  been 
naturalized  in  any  such  court,  shall  enjoy  the  same  rights  and 
privileges,  as  if  he  had  been  naturalized  in  a  district  or  circuit  ,^.  ^^^  j^  ^ 
court  of  the  United  States.   (4)  14, 1802,  s.  3. 

13.  No   person  who  shall  arrive  in  the  United  States  after  Five  3'ears' 
February  the  17th,  1815,  shall  be  admitted  to  become  a  citi-  necessary, 
zen  of  the  United   States,  who  shall  not,  for  the   continued  wh""- 
term  of  five  years,  next  preceding  his  admission,  have  resided  f\^if  ^^2*^*^ 
within  the  United  States.*  26tiiJune, 

1648,  c.  72. 

*  Tlie  oath  of  naturalization,  when  taken,  confers  the  rights  of  a  citizen.  It  is  not 
necessary  that  there  should  be  an  order  of  court  admitting  the  alien  to  become  a  citizen. 
Campbell  v.  Gordan  et  al.,  6  Cr.  176.  Nor  that  it  should  appear  by  the  record  of 
naturalization  that  all  the  requisites  presented  by  law  for  the  admission  of  aliens  have 
been  complied  with.  Stark  n.  Chesapeake  Ins.  Com.  7,  Cr.  520.  The  courts  in  natu- 
ralization cases  receive  testimony,  compare  it  with  the  law,  and  judge  on  both  law  and 
fact.  Hence  their  judgment,  entered  on  record  in  legal  form,  is  complete  evidence  of  its 
own  validity,  and  conclusive  in  all  courts.     Spratt  v.  Spratt,  4  Pet.  393. 

The  citizens  of  each  State  shall  be  entitled  to  all  privileges  and  immunities  of  citizens 
in  the  several  States.     Con.  art.  4,  s.  2. 

Citizens  of  the  United  States  have  a  right  to  expatriate  themselves  in  time  of  war  as 
well  as  of  peace,  until  restrained  by  Congress.  Such  right  is  subject  to  the  control  of 
the  legislature,  and  to  render  the  exercise  of  it  valid,  there  must  be  an  entire  departure 
from  the  United  States  for  a  purpose  which  is  not  illegal,  nor  in  fraud  of  the  duties  at 
home  of  the  emigrant.  Talbot  v.  Jansen,  3  Dall.  133;  Santissima  Trinidad,  7  Wheat. 
648;  see  U.  S.  v.  Williams,  4  Hall's  Law  Journal,  461;  U.  S.  v.  Gillies,  1  Pet.  161. 

A  citizen  of  the  United  States,  by  becoming  a  citizen  of  another  country,  does  not 
thereby  cease  to  be  a  citizen  of  the  United  States,  nor  is  he  absolved  from  his  original 
allegiance.  Ibid.  He  may  acquire  in  a  foreign  country  the  commercial  privileges 
attached  to  his  domicil,  and  be  exempted  from  the  operation  of  commercial  acts  em- 
bracing only  persons  resident  in  the  United  States  or  under  its  protection.  Murray  «. 
Oharming  IJetsy,  2  Cranch,  120. 


53' 


INDEX. 


ABATEMENT  OF  SUITS. 

Suits  not  to  abate  by  death  or  marriage  of  parties,  64. 

nor  by  death  of  executors  or  administrators  of  parties,  64. 

may  be  revived  within  two  terms  after  death,  64. 

in  what  time,  in  case  of  contested  will,  or  grant  of  administration,  64. 

Eight  of  action  to  survive  to  executors,  &o.,  290. 

Suits  for  penalties,  or  damages  merely  vindictive,  to  abate,  64. 

Heirs  shall  have  action  for  waste  done  in  lifetime  of  ancestor,  598. 

Improper  venue  in  indictments  to  be  pleaded  in  abatement,  232. 

Suits  revived  in  equity,  on  death  of  parties,  190. 

Kevived  in  certain  cases,  by  defendant  against  codefendant's  representatives,  191. 

Proceedings  in  such  cases,  191. 

Actions  when  to  abate,  by  reason  of  the  amount  sued  for,  165. 

Death  between  verdict  and  judgment,  if  entered  in  two  terms,  not  error,  182. 

Administrator  d.  b.  n.  may  have  execution  on  judgment  got  hy  former  administrator,  182. 

Attachment  not  to  abate  for  want  of  form,  94. 

Attachment  issued  without  bond  and  alBdavit,  abated  on  plea,  98. 

Process  of  justice  not  to  abate  for  want  of  form,  365. 

Plea  in  abatement  received  only  on  aiSdavit  or  proof,  170. 

By  and  against  whom  suits  to  be  revived,  64,  65. 

On  marriage  of  feme  defendant,  husband  made  party,  64.   V 

Husband  made  party  plaintiff  to  give  security  for  costs,  64. 

Actions  brought  in  improper  county,  abated  on  plea,  164. 

Service  how  made  In  ejectment,  on  death  of  party,  65. 

Suits  allowed  for  injuries,  where  death  ensues,  65. 

Damages  in  siich  case,  how  assessed,  65. 

To  whom  they  shall  belong,  66. 

Action  to  be  brought  within  one  year,  66. 
ABSTRACTS  OF  TAX  LISTS.    See  Rtvmue. 

Foi-ms  of,  funiished  by  comptroller,  518. 

Abstrsicts  of  Usts  of  all  taxes  to  be  sent  to  comptroller  before  1st  April,  518. 

What  set  forth,  in  abstracts,  518. 
ACCESSORIES. 

Accessories  before  the  fact  punishable  as  principals,  195. 

to  felonies,  before  the  fact,  when,  where,  and  how  tried,  212. 

after  the  fact,  212. 
may  be  punished,  though  principal  be  not  attainted,  213. 

ACCOUNT. 

Aotion  of,  allowed  against  executors,  &c.,  of  guardians,  180. 
Accounts  in  petition,  audited  and  settled  by  order  of  court,  179. 

taken  in  certain  suits,  against  executors,  administrators,  guardians,  sheriffs,  &c.,  182. 

at  law,  stated  and  paid  for  as  in  equity,  182. 


632  INDEX. 

ACRE  OF  LAND. 

What  shall  he  the  measnre  of  an  acre  of  land,  600. 
ACTS  OF  ASSEMBLY.  See  Lines,  Public  Printing. 
ADJUTANT-GENERAL.    See  Militia,  Public  Arms. 

Salary  of,  453. 
ADMINISTRATOR.     Sec  Executors  and  Administrators. 
ADMINISTRATOR  PENDENTE  LITE.    See  Executors  and  Adminislratvrs. 
ADMINISTRATOR,  SPECIAL.     See  Executors  and  Administrators. 
ADULTERY.     See   Divorce  and  Alimony,  Dower,  Widow. 
ADVANCEMENTS.     See  Legacies,  tfc,  Frauds  and  Fraudulent  Conveyances. 

Advancements  of  slaves  to  children  good  without  writing,  in  certain  cases,  500. 

to  children  of  intestates  to  be  accounted  for,  370. 
Children  advanced  in  real  or  personal  estate,  to  account,  248. 
Schedule  of  advancements  rendered  on  oath,  370. 
ADVANCEMENTS  OF  ESTATES  OF  INSANE.     See  Idiots  and  Lunatics. 
AGRICULTURE  AND  GEOLOGY. 

The  North  Carolina  Agricultural  Society  incorporated,  66. 

shall  elect  a  president  and  other  officers,  who  shall  hold  till  others  chosen,  67. 
shall  provide  a  place  for  holding  annual  fairs,  67. 
^1,500  appropriated  yearly,  if  like  sum  be  raised  by  society,  67. 
may  hold  property  of  S50,000  value,  66. 
County  Agricultural  Societies  may  be  formed,  and  become  corporations,  67. 
how  organized — -with  what  officers  and  term  of  office,  67. 
to  continue  corporations  during  will  of  legislature,  67. 
when  organized,  certificate  thereof  filed  with  clerk  of  county  court,  67. 
organization  to  be  certified  to  public  treasurer,  68, 
entitled,  one  society  in  each  county,  to  $50  on  certain  conditions,  68. 
funds  to  be  applied  in  premiums,  &c.,  68. 

to  transmit  to  treasurer  annual  statement  of  money  received,  and  expended,  68. 
■  shall  annually  publisli  their  experiments,  68. 
secretary  to  keep  a  record  of  their  proceedings,  68. 
county  societies  may  hold  property  of  the  value  of  810,000,  67. 
surveyor  in  geology,  &c.,  appointed  by  governor,  69. 
his  duty  —  expense  of  survey  not  to  exceed  $5,000  a  year,  69. 
surveyor  to  deliver  leeturet,  &c.,  69. 
ALIEN  HEIRS. 

shall  not  prevent  other  relations,  being  citizens,  from  inheriting,  249. 
ALIMONY.     See  Divorce  and  Alimony. 
AMENDMENT. 

All  proceedings  may  be  amended  before  judgment  —  on  what  terms,  69. 

Adverse  party  may  answer  amendments  of  substance,  70. 

Formal  defects  amended  after  judgment,  70. 

Certain  defects  cured  after  verdict,  70. 

Such  and  like  defects  amended  wherever  the  record  may  be,  71. 

On  demurrer  formal  defects  disregarded,  unless  specially  expressed,  71. 

May  be  amended  after  demurrer,  71. 

No  amendment,  without  order  of  court,  71. 

Returns  of  officers,  &c.,  amendable  in  matters  of  form,  70. 

The  provisions  of  Ch.  "  Amendment"  extend  to  all  proceedings  at  law,  71, 

Bail  not  discharged  by  amendment  of  process,  unless,  &c.,  107. 

Supreme  court  may  amend  any  proceeding  at  law,  199. 

What  may  amend  in  equity  cases,  after  cause  set  for  hearing,  199. 

May  remand  a  cause  for  amendment  below,  199. 

May  amend  by  making  proper  parties,  199. 

Proceei'.iiigs  in  "Forcible  Entry  and  Detainer"  amendable,  297. 

Instruments  of  writing  merely  informal,  not  lost  for  want  of  form,  170. 

Indictment  not  ijuaslied,  or  judgment  stayed,  for  formal  objections,  230. 


INDEX. 


633 


APPEALS  AND  PEOCEEDINGS  IN  THE  NATURE  OF  APPEALS. 
Allowed  from  county  to  superior  court,  on  giving  security,  72. 
From  orders  appointing  or  removing  guardians,  72. 
On  probate  of  wills,  and  granting  letters  of  administration,  73. 
From  orders  establisliing  or  discontinuing  roads,  ferries,  &c.,  73. 
To  stand  for  trial  first  term,  when,  73. 
Clerk  of  county  court  to  file  transcript  in  superior  court,  73. 
Appellant  may  also  file  it,  73. 

How  to  proceed  when  vacancy  in  superior  court  clerk's  ofiice,  73. 
If  appellant  fail  to  file  transcript,  appellee  may,  73. 
And  have  judgment  affirmed,  with  double  costs,  73. 
After  appeal,  clerk  of  county  court  may  issue  subpcenas,  73. 

Defendant  in  debt,  &c.,  appealing  for  delay,  to  pay  additional  i  per  cent,  interest,  74. 
Plaintiff  appealing  and  not  recovering  more,  to  have  no  costs,  1i. 
May  be  ordered  to  pay  costs,  74. 

Bonds  for  appeal  and  prosecution  sent  up  as  parts  of  record,  and  judgment  thereon,  74. 
Clerk  of  superior  court  to  give  receipt  for  transcript,  and  indorse  day  of  delivery,  74. 
Shall  issue  subpcenas  if  required,  74. 
Secordari,  &c. 

Clerk  of  superior  court  to  take  security  of  persons  suing  -writs  ofrecordari,  74. 
Clerk  of  county  or  superior  courts  to  take  security  of  persons  suing  certiorari,  75. 
Writs  of  error. 
Superior  courts  may  gi-ant  -writs  of  error,  proceedings  therein,  75. 
Shall  render  final  judgment  and  issue  execution,  75. 
Security  to  be  given  by  plaintiff  in  error,  75. 

Writs  of  error  in  county  or  superior  courts  to  be  brought  in  five  years,  75. 
Any  one  of  several  defendants  may  appeal,  76. 
Not  dismissed  for  want  of  form,  74. 

Penalty  of  f  100  on  clerks,  &c.,  in  fault  respecting  appeals,  74. 
Allowed  the  State  in  issues  of  bastardy,  109. 
In  appeals  and  recordari  by  defendant  from  justice's  judgment,  court  may  require  plaintiff  to 

secure  costs,  181. 
From  justice's  judgment  to  be  tried  first  term,  181. 
In  case  of  default,  what  judgment  plaintiff  to  have,  181. 
On  appeals  from  justice,  judgment  against  sureties  of  party  cast,  181. 
Plaintiff  appealing  from  justice,  and  recovering  no  greater  sum,  to  recover  no  costs,  181. 
From  county  to  superior  coui't,  tried  de  novo,  when,  181. 
Allowed  from  judgment  to  correct  error  in  registration,  246. 
From  justice  concerning  injuries  to  stock,  tried  de  novo,  295. 
Allowed  by  one  or  more  in  case  of  issue  with  insolvents,  337. 
From  judgment  on  report  of  damages  assessed  in  case  of  railroads,  &c.,  358. 

judgment  assessing  value  of  materials  to  repair  railroads,  &c.,  359. 

school  committee  to  board  of  superintendents,  384. 
From  judgment  of  court-martial,  406. 

proceedings  for  damages  done  by  mill-ponds,  429. 

judgment  of  commissioners  of  navigation,  462. 

justice  in  inferior  offences  of  slaves,  571. 
mayors,  588. 

justice's  judgment  to  county  or  superior  court.    See  Justices  of  the  Peace. 

APPEALS  TO  SUPREME  COURT. 

Causes  from  what  counties  carried  to  Morganton,  exception  in  criminal  cases,  197. 

Allowed  from  superior  to  supreme  court  on  giving  security,  75. 

Summary  judgment  on  bond  of  appellant,  75. 

Insolvent  free  person  convicted  of  capital  offence,  may  appeal  -\vithout  security,  75. 

Supreme  court  to  enter  judgment  on  uispection  of  the  record,  76. 

Allowed  at  discretion  of  court  from  interlocutory  judgments  and  decrees,  76. 

On  appeals  from  such  judgments,  &c.,  no  judgment  entered  in  supremo  court,  198. 

What  part  of  the  record  transmitted  on  such  appeal,  76. 

May  proceed,  in  court  below,  with  residue  of  the  cause,  76. 

On  appeal  to  supreme  court,  clerk  to  file  transcript,  76. 

On  his  failure,  appellant  may  file  it,  76. 


634 


INDEX. 


APPEALS  TO  SUPREME  COURT,  ( Conlinua?). 
On  his  failure,  appellee  may  file  it,  76. 

Or  obtain  certificate  of  such  failure,  and  have  double  costs,  "6. 
Dismissed  for  failure  to  prosecute  after  notice,  199. 
Allowed  on  final  decree  of  divorce  or  alimony,  254. 

on  grant  of  alimony  pending  suit,  264. 
What  supreme  court  may  examine  on  such  appeal,  254. 
APPRENTICES. 

Orphans  and  certain  other  children  of  small  esttvtes,  bound  out,  77. 
Certam  children  of  free  negroes  to  be  bound,  78. 
To  whom  and  for  what  time,  78. 
,'^-Duty  of  masters  in  maintenance,  education,  &c.,  78. 
Binding  to  be  by  indenture,  78. 
Remedy  thereon  for  apprentice,  78. 

Master  of  children  of  color  to  give  bond  not  to  remove  them  out  of  the  county,  78. 
And  to  produce  them  when  required,  78. 
On  failure,  to  be  sued  and  whole  penalty  recovered,  78. 
In  certain  cases,  may  be  taken  to  adjoining  county  and  bound,  79. 
When  colored  mariner  apprentice  may  be  carried  ont  of  the  county,  79. 
What  shall  excuse  non-production  of  apprentice,  79. 
Mastership  may  be  sun-endered  on  terms,  79. 

Master's  remedy,  when  apprentice  after  eighteen  absents  himself,  79. 
Penalty  for  harboring  orphans,  and  not  having  them  bound,  79. 
Apprentices  to  be  kept  by  pilots,  463. 
ARMS.     See  Slaves  ajul  Free  Negroes. 
ARMS,  PUBLIC.    See  Public  Arms. 
ARMS  TAXED.     See  Revenue,  510. 

Wearing,  or  keeping.     See  Slaves  and  Free  Negroes,  577. 
ARREST. 

Bail  may  arrest  and  surrender  principal  before  final  judgment,  106. 
Process  in  civil  cases  not  to  be  executed  on  Sunday,  day  of  election,  or  muster,  168. 
Nor  on  jurors  or  witnesses,  168. 
No  person  to  be  arrested  upon  a  presentment,  229. 
Members  of  Assemblj',  not  to  be  arrested  except  for  crime,  308. 
._,     Females  not  to  be  arrested  for  debt,  339. 
ARSENAL.     See  Public  Arms. 

Malicious  burning  of,  punished  with  death,  203. 
ARSON.    See  Crimes  and  Punishments. 
ASSAULT  AND  BATTERY.    See  Trespass. 
ASSESSORS  OP  REAL  ESTATE.     See  Revenue,  Towns. 
1.  ASYLUM  FOR  DEAF  MUTES  AND  BLIND  PERSONS. 
Incorporated  —  How  styled,  81. 

To  be  governed  by  board  of  seven  directors  and  have  a  president,  81. 
Who  shall  compose  the  board,  81. 
Vacancies  filled  by  the  governor,  81. 

Corporate  powers  vested  in  a  president  and  directors  — their  powers  and  duties,  81. 
Time  of  meeting — members  may  resign,  82. 
Removal  from  Wake  —  when  vacancy  created  thereby,  82, 
Board  to  report  to  Assembly,  82. 

To  report  to  literary  board  the  counties  bound  to  provide  for  pupils,  82. 
Public  treasurer  to  report  to  literary  board  what  counties  have  levied  tax,  82. 
What  persons  received  as  pupils,  82. 
County  tax  to  be  levied  when  parents  cannot  pay,  82. 
Other  persons  admitted  as  pupils,  when,  82. 
Pupils  from  other  States,  83. 
Penalty  for  failure  to  levy  tax,  or  to  collect  and  pay  it,  88. 


INDEX.  635 

ASYLUM  FOR  DEAF  MUTES  AND  BLIND  PERSONS,  (Qmtinved). 

No  county  bound  to  provide  for  more  tlmu  five,  S3. 

On  failure  to  levy  tax,  amount  to  be  deducted  from  scliool  fund,  83. 

$«,000  from  literary  fund  yearly  appropriated  to  institution,  63. 

Faculty  may  confer  degrees,  83. 

Funds  to  be  deposited  with  public  treasurer,  83. 
2.  ASYLUM  FOR  THE  INSANE. 

"  The  Insane  Asylum  of  North  Carolina  "  incorporated,  8i. 

To  be  under  the  control  of  nine  directors,  cliosen  by  Assembly — their  powers,  84. 

For  -what  period  chosen  —  How  apportioned  through  the  State,  Si. 

Three  to  reside  in  Wake  county,  84. 

All  to  meet  yearlj'  in  November,  84. 

To  appoint  a  superintendent  —  His  qualifications,  and  residence,  64. 

Terra  of  oflice,  eight  years  —  how  removed,  84. 

Board  to  appoint  other  officers,  and  fix  their  salaries,  65. 

Shall  make  by-laws,  and  reports,  &c.,  85. 

Superintendent  to  control  subordinates,  85. 

Wake  directors  to  be  executive  committee  —  their  powers,  65. 

Board  to  advertise  v/hen  asylum  is  completed,  85. 

Sheriffs  to  report  number  of  insane  in  jail,  85. 

Rule  for  selecting  patients  —  curableuess,  and  not  poverty,  65. 

What  insane  shall  be  removed  from  jail  to  asylum,  86. 

Those  confined  on  criminal  charges  to  be  removed,  SG. 

What  indigent  admitted;  proceedings  therefor,  86. 

Affidavit  of  insanity  —  Precept  to  bring  up  patient  for  examination,  86. 

Proceedings  of  justices  on  the  return,  86. 

Patient  to  be  removed,  unless  bond  is  given,  &c.,  86. 
Examination  to  be  sent  with  patient,  87. 
Form  of  the  warrant,  87. 

Interrogatories  and  answers  transmitted  to  superintendent,  67. 
Board  convened  and  pi-oceedings,  when  indigent  insane  sent  to  asylum,  87. 
Paying  patients  from  other  States,  when  admitted,  88. 
What  necessary  to  entitle  such  patient  to  admission,  88. 
Form  and  condition  of  the  bond  required,  88. 
Money  not  spent,  to  be  refunded,  89. 

Bonds  to  keep  ins.ane  from  asylum,  filed  in  office  of  county  court,  89. 
Damages,  when  bond  sued,  89. 
Form  and  condition  of  bond,  89. 
On  breach,  patient  to  be  sent  to  asylum,  89. 
Two  guardsmen  only  to  be  employed,  unless,  &c.,  89. 
What  insane  deemed  indigent,  89. 
County  to  pay  their  expenses  into  public  treasury,  90. 
How  county  may  be  reimbursed,  90. 
County  to  levy  tax  for  support  of  iusane,  90. 

Failure  to  levy,  or  to  collect  and  pay  tax  a  misdemeanor;  proviso,  &c.,  90. 
Amount  in  certain  cases  deducted  from  school  fund,  90. 
Guardian  or  friend  giving  bond  under  section  23,  &c.,  how  repaid,  90. 
Money  to  support  asylum  paid  out  of  public  treasury,  90. 
Accounts  of  its  funds  to  pass  through  comptroller's  office,  594. 
Money  belonging  to  asylum  paid  into  public  treasury,  90. 
Donations,  how  applied,  91. 
On  what  warrant  treasurer  of  asylum  to  pay,  91. 
Treasurer  to  give  bond,  91. 

Board  and  executive  committee  to  record  their  proceedings,  91. 
Tax  to  support  xsylum  paid  into  public  treasury,  91. 
Who  shall  be  official  visitors,  91. 
TTACHMENT. 

May  issue  for  debt  or  damage,  when  process  cannot  be  served  by  reason  of  absence,  92. 


636  INDEX. 

ATTACHMENT,  ( Continued). 

Also  for  citizens  of  the  State  ngaiiist  non-residents,  92. 

Not  to  issue  without  bond,  which  with  affidavit  must  be  returned  to  court,  92. 

Form  of  attachment  and  bond,  93. 

Not  abated  for  want  of  form,  94. 

Defendant  maj'  replevy  on  giving  bail  —  Power  of  bail,  94. 

Perishable  property  to  be  sold,  and  proceeds  deposited,  &c.,  94. 

Garnishee  summoned;  to  answer  on  oath,  94. 

Judgment  against,  for  efiects  in  his  hands,  94. 

Proceedings  against,  when  ho  fails  to  appear,  95. 

Judicial  attachment  to  issue,  when,  95. 

Giimishee  denying  he  has  any  property,  &o.,  issue  made  up,  95. 

Proceedings  wliere  attachment  levied  on  property  claimed  by  another,  95. 

Specific  article,  confessed  by  garnishee,  valued  by  jury,  and  judgment  for  the  value,  95. 

In  what  cases  garnishee  exonerated  by  delivery  of  the  articles,  95. 

Judgment  conditional,  where  money  or  articles  are  due,  or  deliverable  at  a  future  day,  96. 

Publication  six  weeks,  to  be  made  for  defendant,  96. 

When  judicial  process  may  issue,  96. 

Attachment  may  issue  against  absentees  exempt  from  arrest,  9G. 

Such  persons  may  plead  without  replevying,  96. 

Also  for  injuries  to  person  and  property,  in  certain  cases,  96. 

Within  what  time  such  attachment  to  issue,  96. 

To  be  dismissed  if  improperly  issued,  97. 

Lien  on  vessels  in  certain  cases,  and  attachment  therefor,  99. 

May  be  attached,  although  owner  be  present,  99. 

Property  in  hands  of  executors,  administrators,  and  trustees,  attachable  in  equity,  when,  98. 

Creditors  may  file  bill  before  end  of  two  years,  98. 

On  decree,  to  give  refunding  bond  to  executors  or  administrators,  98. 

Lien  on  property  from  time  bill  filed,  96. 

Court  may  require  creditor  to  indemnify  executor,  &c.,  against  loss,  98. 

Upon  what  proof  and  terms  plaintiff  may  have  decree,  99. 

Debtor  may  replevy  before  final  decree,  99. 

Matters  in  the  bill  to  be  specially  stated  on  oath,  99. 

Attachment  before  justices  of  the  peace,  rules  therefor,  97. 

Returnable  in  thirty  days,  97. 

Replevy  bond  how  conditioned,  97. 

Garnishee  to  appear  and  answer,  97. 

Perishable  estate  to  be  sold,  97. 

Specific  articles  confessed  by  garnishee,  how  valued,  97. 

How  and  when  garnishee  exonerated  by  delivering  specific  articles,  97. 

May  stay  execution,  97. 

Claimant  of  property  may  remove  proceedings  to  county  or  superior  court,  97. 
If  garnishee  deny  possession  of  property,  &c.,  proceedings  to  be  removed  to  county  or  superior 
court,  98. 

Publication  made  for  defendant,  98. 

Attachment  bond  to  be  filed  by  justice,  98. 

Real  estate  attached  and  condemned  by  justice,  proceedings  to  be  returned  to  county  court,  98. 

Attachment  may  issue  against  persons  charged  in  bastardy  and  failing  to  appear,  108. 

Alias  may  issue  on  sheriff's  return  of  "  defendant  not  to  be  found,"  168. 

If  estate  be  attached  and  defendant  fail  to  appear,  judgment  entered,  1C8. 

Estate  taken  on  judicial  attachment  and  not  replevied,  sold  on  final  judgment,  168. 

If  judgment  in  attachment  bo  unsatisfied  by  sale,  execution  to  issue,  168. 
ATTORNEYS  AT  LAW. 

To  be  licensed  by  judges  of  supreme  court,  102. 

Persons  from  other  States  licensed,  when,  102.' 

To  take  oaths,  102. 

Form  of  oath,  435. 

To  pay  a  tax  for  license  to  practice,  102. 

Tax,  how  disposed  of,  514. 

To  pay  costs  of  suit  dismissed  for  want  of  declaration,  102. 


INDEX.  637 

ATTORNEY  AT  LAW,  {CmfinuecT). 

Guilty  of  fraud,  to  pay  double  damages,  102. 
Not  to  take  greater  tax  fees  than  allowed,  102. 
Justice  of  the  peace  not  to  practise  law  in  his  court,  102. 
Attorney  appointed  justice  not  to  practise  in  his  court,  103. 
One  attorney  only  to  speak,  unless  allowed  by  court,  170. 
May  argue  to  the  jury  both  law  and  fact,  170. 
Power  of  attorney  to  be  produced  and  filed,  unless,  &c.,  171. 
If  necessary  to  be  retained,  what  to  be  done,  171, 
Fees  of  attorneys  at  law,  546. 

Attorney  assigned  to  defend  slave,  paid  by  county,  578. 
not  to  hold  the  office  of  sheriff,  558. 
ATTORNEY-GENERAL  AND  SOLICITORS. 

Attorney-general  elected  by  Assembly  for  four  years,  26. 
To  attend  supreme  court  and  prosecute  in  third  circuit,  100. 
Solicitors  elected  by  Assembly  for  four  years,  to  prosecute,  &c.,  100. 
Vacancy  in  solicitor's  office  durmg  recess  filled  by  presiding  judge,  100. 
County  Solicitors. 
Appointed  by  county  court  —  Term  of  office  and  duty,  100. 
To  examine  clerk's  and  register's  offices  to  see  they  are  properly  kept,  101. 
Unless  excused  by  a  majority  of  the  justices,  101. 
To  report  condition  of  the  offices — Paid  for  services,  101. 
May  be  paid  by  county  for  extra  services,  141. 

To  sue  for  penalties  incurred  by  superintendents,  &c.,  of  common  schools,  388. 
Also  for  penalties  incurred  by  ministers,  justices,  and  clerks,  for  neglects  respecting  licenses  and 

certificates  of  marriage,  391. 
Prosecuting  officers  to  collect  forfeitures  of  sheriffs  for  escapes  in  criminal  cases,  106. 
To  sue  trustees  mismanaging  charitable  trusts,  118. 
Fees  for  prosecuting  in  such  cases,  118. 

Attorney-general  may  file  a  bill  to  restrain  corporations  from  excesses,  138. 
To  enforce  duties,  prevent  frauds,  &c.,  and  remove  dishonest  ti-ustees,  138. 
On  absence  of  attorney-general,  supreme  court  may  appoint  State  counsel,  200. 
Duty  of  attorney-general  and  solicitors  on  escape  of  criminal,  209. 
To  institute  suits  against  guardians,  when,  320. 
Compensation  for  such  services,  320. 

Duty  of  attorney-general  and  solicitors,  respecting  infants  under  fifteen  marrying  without  con- 
sent, 392. 
Fees  for  services  in  such  cases,  393. 
Oath  of  attorney-general,  form  of,  435. 

State  solicitor,  form  of,  435. 

county  solicitor,  form  of,  435. 
Duty  of  prosecuting  officer  on  information  of  fraud  on  the  revenue,  517. 
Attorney-general  and  solicitors  to  prosecute  suits  for  injuries  to  bridges,  540. 
Salaries  of  attorney-general  and  solicitors  for  the  State,  543. 
Fees  of,  on  circuit,  546. 

attorney-general  in  supreme  court,  546. 

county  solicitor,  546. 

attorney  for  the  State  in  civil  cases,  547. 
Prosecuting  officer  paid  for  attending  courts  of  oyer  and  terminer,  573. 
AUCTIONS  AND  AUCTIONEERS. 

Auctioneers  appointed  by  county  court  to  give  bond  for  discharge  of  duty,  103. 

By  towns,  to  give  like  bond,  104. 

Duties  of— To  render  semi-yearly  to  clerk,  sworn  account  of  sales  and  tax,  103. 

Vacancy,  how  filled,  104. 

Penalty  of  S200  for  acting  without  appointment,  104. 

What  sales  exempt  from  auction  tax,  104. 

Fees  of,  —  not  to  exceed  two  and  a  half  per  cent.,  104. 

One  per  cent,  of  town  auctions,  to  be  paid  to  town,  104. 

Tax  on  auctioneers,  611. 

54 


090  INDEX. 

BACKGAMMON  TABLE.    See  Crimes  and  Punishments,  218. 
BAIL. 

Bail-bond,  when  and  how  taken  and  returned,  105. 

Sheritr  becomes  special  bail,  when,  105. 

Bond  deemed  assigned  to  plaintiff,  without  indorsement,  105. 

Bail  deemed  special,  and  proceeded  against  by  sci.Ja.,  105. 

Shall  not  plead  non  est  factum,  but  on  oath,  105. 

May  arrest  and  suiTender  principal  before  final  judgment,  106. 

Discharged  thereby  in  ciiil  cases,  but  not  in  criminal  after  default,  1C6. 

Person  surrendered  may  give  other  bail,  which  may  be  excepted  to,  106. 

Consequence  of  allowing  exception,  in  civil  cases,  106. 

In  criminal  cases,  sheriff  shall  forfeit  $100,  106. 

If  defendant  be  released,  sheriff  is  indictable,  106. 

Duty  of  prosecuting  officer  to  collect  forfeiture,  106. 

Bail,  how  to  discharge  themselves  when  principal  in  custody,  106. 

Debtor  may  be  detained  where  confined,  by  order  of  court,  106. 

Surrendered  after  final  judgment,  not  to  be  committed,  but  on  affidavit,  as  in  ca.  sa.,  106. 

Imprisoned  for  want  of  bail,  may  give  it:  bond  returned  to  next  court,  107. 

Matters  of  defence  good  for  principal,  good  for  bail,  107. 

Costs  to  be  paid  by  bail  in  certain  cases,  although  discharged,  107. 

Not  discharged  by  amendment  of  process,  unless,  &c.,  107. 

Defendant  in  attachment  may  replevy  by  giving  bail^Power  of  bail,  84. 
ejectment  to  give  bail,  &c.,  or  not  allowed  to  plead,  166. 

In  criminal  cases  to  be  taken  by  officer  when  offence  bailable,  230. 

Sheriff  not  to  become  bail,  in  criminal  cases,  230. 

Persons  convicted  of  misdemeanors  allowed  bail  pending  appeal,  230. 

Bail  in  civil  cases  before  justices  —  see  Justice  of  the  Peace,  362. 

Suits  on  sci.fa.  against  bail  to  be  brought  in  four  years,  373. 

In  proceedings  against  tenant  of  mill,  owner  may  give  bail  and  defend,  428. 

Defendant  in  equity,  when  held  to  bail,  187., 

Surety  for  insolvent's  appearance  may  surrender  his  principal,  338. 
BAIL-BOND.    SeeSmZ 
BAKERS'  BREAD.     See  Tmcns. 
BANK-NOTES.     See  Banlcs,  Currency. 
BANKS.     See  Currency. 

Banks  not  to  draw  checks  payable  otherwise  than  in  specie,  237. 

Not  to  issue  bills  or  certificates  of  deposit  for  less  than  three  dollars,  237. 

Notes  of  banks  issuing  bills,  &c.,  less  than  three  dollars,  not  to  be  received  by  treasurer,  238. 

Specie  required  by  charter,  to  be  himafide  paid  before  banking,  238. 

Certificate  of  payment  to  be  deposited  with  governor,  on  pain  of  misdemeanor  and  penalty,  238. 

Issuing  false  certificate,  misdemeanor,  238. 

Balance  in  treasury  to  be  deposited  in  banks,  593. 

Agencies  of  banks  out  of  the  State,  taxed,  514. 
BARS.     See  Gates  and  Bars. 
BASTARD  CfflLDREN. 
\      Single  woman  big  with  child,  &c.,  refusing  to  declare  the  father,  to  give  security,  &c.,  107. 

If  she  declare  tiie  father,  he  shall  give  security  to  perform  the  orders  of  court,  108. 

Persons  charged  to  be  recognized  to  court,  though  child  be  not  bom,  108. 

Process  to  issue  against  person  charged  failing  to  appear,  108. 

Issue  to  ti'y  paternity  may  be  made  up,  108, 

If  found  against  him,  or  makes  no  issue,  he  shall  maintain  child  and  pay  costs,  108. 

Qn  default  of  securing  the  same,  committed  to  prison,  109. 

Appeal  allowed  the  State  in  such  issues,  109. 

Examination  to  be  in  three  years  after  birth  of  child,  109. 

Execution  may  issue  for  maintenance  after  ten  days'  notice,  109. 

Illegitimate  child,  legitimated  by  court  —  Decree  to  be  recorded,  109. 

Effects  of,  —  legitimate  in  all  respects  as  to  the  father,  109. 
Settlement  of  illegitimate  children,  where  to  be,  472. 


INDEX.  639 

BASTARD  CHILDREN,  {Continued). 

Free  negroes  convicted  of  bastardy,  hired  out  to  support  tlie  child,  579. 
Children  not  to  become  illegitimate  by  divorce,  253. 
Illegitimate  children  to  inherit  from  their  mother,  2'49. 
And  to  inherit  from  each  other,  250. 
Dying  without  issue,  mother  to  be  heir,  250. 
BEEF.    See  Inspections, 

BENEFIT  OF  CLERGY,  ABOLISHED,  207. 
BIGAMY. 

Offence  defined — misdemeanor — how  punished,  205.      -" 
BILLIARD  TABLES,  TAX  ON,  510. 

Not  included  among  prohibited  gaming  tables,  218. 
BILL  OF  EXCEPTIONS. 

May  be  tendered  to  judge,  who  shall  sign  and  seal  it,  179. 
BILL  OF  REVIEW. 

Within  what  time  petition  to  rehear  in  supreme  court  may  be  filed,  199. 
Bills  of  review  and  writs  of  error  allowed  within  two  years,  &o.,  199. 
Bills  of  review,  &c.,  in  other  courts  to  be  brought  in  five  years,  193. 
BILLS,  BONDS,  AND  PROMISSORY  NOTES. 

Bills,  bonds,  and  notes  for  money,  negotiable  as  inland  bills  of  exchange,  110. 
Action  in  case  may  be  brought  in  name  of  indorsee,  110. 
Or  in  debt,  where  the  obligee  may  thus  sue,  110. 
Orders  in  writing — drawer  or  acceptor  hable  thereon.  111. 
Protest  for  non-acceptance  and  notice  necessary  before  suit  against  drawer.  111. 
Da3's  of  grace  on  bills,  &c.,  except  those  payable  on  demand.  111. 
Protest  of  notary,  &c.,  evidence  of  demand,  &c.,  112. 
Indorsees  of  negotiable  securities,  liable  as  sureties,  112. 

Interest  on  bills,  bonds,  notes,  contracts,  &c.,  when  and  from  what  time  given,  111. 
,       Contracts  for  delivery  of  specific  articles  to  bear  interest.  111. 

Bonds  payable  to  clerk,  &c.,  for  the  use  of  suitors,  suable  in  name  of  State,  112. 
Indorsee  may  sue  maker  and  indorser,  jointly  or  severally,  177. 
And  their  executors  and  administrators,  177. 
BLANK  FORMS. 

To  be  printed  for  offices  of  governor,  treasurer,  secretary  State,  comptroller,  and  adjutant-gen- 
eral, 490. 
BLIND  PERSONS.     9,^6  Asylums. 
BOARD  OP  VALUATION.     See  Revenue,  519. 
BOATS  AND  CANOES. 

Trespass  on  boats,  canoes,  &c. — Penalty  and  damages,  113. 
Slaves  guilty  to  be  whipped,  113. 
Penalty  not  to  extend  to  certain  cases,  113. 
Number  of  boats  prescribed  for  pilots,  463. 
BONDS.    See  Bills,  Bonds,  and  Promissory  Notes. 
BONDS,  OFFICIAL.     See  Official  Bonds. 
BONDS  FOR  BENEFIT  OF  SUITORS. 

Bonds  payable  to  clerks,  &c.,  for  benefit  of  suitors,  suable  in  name  of  State,  112. 
BONDS  FOR  PROSECUTION  OF  SUITS. 

Bond  with  security  to  be  given  before  process  issued,  else  suit  dismissed,  166. 
To  be  given  when  husband  becomes  party  plaintiff,  64. 
Real  plaintiff  in  ejectment  to  give  prosecution  bond,  or  suit  dismissed,  165. 
Judgment  on  bond  against  sureties  of  plaintiff  faihng  in  suit,  184. 
Bonds  for  prosecution,  &c.,  to  be  sent  up  as  part  of  the  record,  74. 
BONDS  OF  THE  STATE.     See  PMic  Debt. 
BOOK  DEBTS. 

In  what  actions,  for  what  sums,  and  within  what  time,  book  accounts  proved  by  plaintiff  or  defend- 
ant, 113. 


640  INDEX. 

BOOK  DEBTS,  ( Gmlinued). 

By  executors  or  administrators,  and  how  proved  by  thena,  114. 

Time  enlarged  for  such  proof,  if  creditor  die  in  two  years  afjer  delivery,  &c.,  114. 

Copies  of  .accounts,  evidence  iu  all  courts,  &c.,  114. 

Unless  notice  given  to  produce  original,  114. 

Oath  to  prove  book  debt,  435. 

Book  debt  oath  for  executors  or  administrators,  435. 
BOOKS. 

Law-books  procured  by  county  courts,  165. 

Penalty  on  clerk  for  abusing  them,  155. 

Books,  &c.,  when  ordered  to  be  produced  by  courts  of  law,  177. 

Consequence  of  failure  to  produce,  &c.,  177.  , 
BOUNDARY.    See  Counly  Boundaries. 

Survej's  ordered  in  case  of  disputed  boundary,  183. 
BOUNDS  — PRISON.     S<}e  Prisoners. 
BOWLING-ALLEY,  tax  on,  610. 

BRAND.     See  Cattle  ajid  Other  Stoch,  Inspections,  TVeir/hts  and  Jfeasures. 
BRIBERY  AT  ELECTIONS.     See  General  Assembln. 
BRIBERY  OF  JURORS,  209. 
BRIDGES.     See  Eoads,  Ferries,  and  Bridges. 

Burning  or  attempting  to  burn — see  Crimes  and  Punishments. 
BROKERS,  tax  on,  513. 
BUGGY,  tax  on,  510. 
BURGLARY,  203. 

BURNING,  OR  ATTEMPTING  TO  BURN  HOUSES.    See  Crimes  and Panislmentt. 
BURNING  WOODS,  AND  HUNTING. 

No  person  to  fire  woods,  except  his  own  — Notice  to  be  given,  115. 

Misdemeanor,  and  penalty  therefor,  116. 

Hunting  deer  out  of  season  on  land  of  others  —  Penalty,  115. 

Penalty  for  hunting  on  other's  lands  after  being  forbidden,  115. 

Hunting  by  fire-light,  or  permitting  slaves,  &c.,  misdemeanor,  221. 

Accomplice  in  fire-hunting  giving  evidence,  discharged,  221. 

Slaves  not  to  hunt  with  a  gun,  569. 
BY-LAWS.    See  Corporations,  Toims. 

CANALS  CUT  BY  LITERARY  FUND.    See  Literary  Fund. 
CANALS  FOR  DRAINING,  &c.     &(X  Draining,  aiul  Damming  Low  Landt. 
CANALS  FOR  NAVIGATION  — INJURIES  TO,  222. 

Lands  for,  how  condemned.     See  Internal  Improvements, 
CANCELLING— INSTRUMENT.     See  Comptroller. 
CANOES.     See  Boats  and  Canoes. 
CAPITOL.     See  Seal  of  Government. 
CARDS,  PLAYING,  TAX  ON,  510. 
CARRIAGE,  TAX  ON,  510. 
CART-WAYS. 

In  what  cases  and  how  obtained,  640. 
CASTRATION,  WITH  MALICE.     See  Crimes  and  Punishments,  203. 
CATTLE,  AND  OTHER  STOCK. 

Owners  to  have  mark  or  brand  and  record  it,  IIG. 

Penalty  for  killing  stock  in  woods,  and  not  showing  head,  ears,  and  hide  in  two  days,  110. 

Cattle  not  to  be  driven  into  this  from  another  State,  between  March  and  November,  116. 

Penalty  therefor  $5, 116. 

Non-residents  within  five  miles  of,  or  owning  land  in  the  State,  exempt  from  penalty,  when,  116. 

Cattle  not  to  be  driven  from  certain  places  into  the  highlands,  when,  116. 


INDEX.  641 

CATTLE,  AND  OTHER  STOCK,  (Contmual). 

When  driven  from  one  part  of  the  State  through  another,  to  be  certified  healthy,  &o.,  117. 

Misdemeanor  for  justice  to  grant  certificate,  without  affidavit,  117. 

Stone  horses,  and  stone  mules,  two  years  old,  not  to  go  at  large  —  Penalty,  117. 

Stock  killed  on  railroads — remedy  for  before  a  justice,  117. 

For  sheep  injured  by  dogs,  117. 

Ignorance  of  dogs'  vicious  habits,  no  defence,  117. 
CAVALRY.     See  MilUia. 
CERTIORARL 

Clerks  of  county  or  superior  court  to  take  security  of  persons  suing  a  certiorari,  75. 
CHAIN  CARRIERS.    See  Entries  and  Grants,  264. 

Fees  of,  652,  553. 
CHAIRMAN  OF  COUNTY  COURT,  155. 

CHAIRMAN  OF  SCHOOL  COMMITTEE.     See  Lilerartj  Fund. 
CHALLENGE  TO  FIGHT  DUEL.     See  Crimes  and  Punishments,  211. 
CHALLENGES. 

Of  jurors  in  civil  cases  —  see  Courts,  County  and  Superior,  163. 

In  criminal  cases  —  see  Criminal  Proceedings,  234. 
CHAMPERTY. 

Buying  or  selling  pretended  rights,  titles,  &c.,  prohibited,  271. 
CHARITIES. 

Trustees  of  charities  to  return  account  of  their  trusts  to  county  court,  118. 

On  failure,  or  misuser  of  trust  funds,  to  be  sued,  118. 

Or  may  be  sued  at  the  suggestion  of  two  citizens,  118. 

Fees  allowed  prosecuting  officer  in  such  cases,  118. 

Charitable  donations  for  insane,  how  appUed,  91. 

Charities  devoted  to  the  poor  and  afflicted,  not  taxed,  506. 
CHEROKEE  INDIANS. 

Contracts  with,  to  be  in  writing,  &c.,  301. 
CHILDREN,  BORN  AFTER  PARENTS'  WILL  MADE. 

To  take  as  on  intestatry.    See  Wills  and  Testaments. 

Infants  unborn  may  take  by  deed,  270. 
CHURCHES,  INJURIES  TO.    See  Crimes  and  Punishments,  223. 
CIRCUS  RIDERS  AND  EQUESTRIAN  PERFORMERS,  tax  on.    See  Revenue,  514. 
CHECKS.     See  Due  Bills  and  Check. 
CLAIMS  AGAINST  COUNTY. 

To  be  numbered  by  clerk,  and  copy  yearly  furnished  chairman,  141. 
CLERK  AND  MASTER  IN  EQUITY. 

Appointed  by  judges  of  superior  courts,  for  four  years,  123. 

Proviso  for  longer  term,  in  certain  cases,  123. 

In  certain  cases,  judge  may  commission  two  justices  to  qualify,  and  ttike  bond,  124. 

To  take  like  oaths,  give  and  renew  like  bonds,  as  clerks  of  superior  court,  123. 

Oath  of  clerk  and  master,  435. 

Liable  to  same  remedies  and  penalties  as  clerks  of  superior  eourt,  124. 

Shall  keep  his  office  withui  one  mile  of  court  house  —  Penalty  $100, 124. 

To  keep  fair  records  —  May  administer  oaths,  124. 

To  certify  appointments  of  guardians  by  courts  of  equity,  to  county  court,  319. 

Clerk  and  master  may  act  as  notary  and  certify  under  seal  of  office,  432. 

To  hold  office  till  successor  appointed,  444. 

Fees  of  clerk  and  master,  651. 

Suits  on  his  bonds  to  be  brought  in  six  years,  373. 

Suits  on  bonds,  and  summary  remedy  against  clerk  and  master  —  see  Official  Bonds. 

Money  remaining  in  hands  of — see  Money  remaining,  cfc. 
CLERK  OF  BOARD  OF  INTERNAL  IMPROVEMENTS.     See  Internal  Improvement. 
CLERK  OF  GENERAL  ASSEMBLY.     See  General  Assembly. 

Pay  of,  544. 

54* 


642  INDEX. 

CLERK  OF  TREASURY.    See  Ireasurer. 

His  salary,  543. 
CLERKS  OF  COUNTY  AND  SUPERIOR  COURTS. 

Elected  every  four  years,  in  like  manner  as  members  of  Assembly,  119. 

Sheriff  to  declare  the  persons  elected,  119. 

Contested  and  tie  elections,  decided  by  majority  of  justices,  120. 

Clerks  to  give  bonds  and  take  oaths,  or  others  appointed,  120. 

Vacancies  in  clerkship  of  county  or  superior  courts,  how  filled,  120. 

Bond  may  be  accepted  by  twelve  justices,  in  certain  cases,  120. 

Judge  appointing  clerk  in  vacation,  may  empower  two  justices  to  take  bond,  &c.,  120. 

Bond,  and  oaths  subscribed,  to  be  returned  to  next  court,  120. 

Bond  to  be  in  penalty  of  $15,000,  with  two  able  sureties,  &c.,  120. 

To  be  proved  in  their  respective  courts,  how  —  where  deposited,  121. 

Keeper  of  bonds  to  have  them  registered  and  kept  as  records,  121. 

To  bo  renewed  annually,  121. 

Receipts  for  public  money  to  be  shown  before  renewal,  121. 

Penalty  for  acting  without  qualifying,  121. 

Going  out  of  office  to  transfer  records,  &c.,  to  successor,  122. 

Or,  in  case  of  vacancy,  to  whom  the  court  may  name,  122. 

Judge  may  order  delivery  of  records,  &c.,  of  superior  court,  122. 

Penalty,  $1,000,  for  not  delivering,  122. 

Office  to  be  kept  at  court  house,  122. 

Clerks  to  resign  to  their  respective  courts,  122. 

may  be  removed,  &c.,  and  others  appointed,  122. 
Removing  from  the  county,  may  be  removed  from  office,  122. 

Failing  in  their  duties,  court  may  have  them  done  at  their  costs,  123. 

Deputy  to  act  as  clerk,  on  his  death  in  vacation,  123. 

Clerks  of  superior  court  to  issue  subpceuas,  if  required,  after  appeal  to  his  court,  74. 

On  appeal  to  supreme  court,  clerk  of  superior  court  to  file  transcript,  76. 

Penalty  of  SlOO  on  clerks,  &c.,  failing  in  their  duty  in  regard  to  appeals,  74. 

Offices  of  clerks  to  be  examined  by  county  solicitor,  101. 

Statement  of  fines,  &c.,  to  be  rendered  by  clerks,  yearly,  on  1st  of  January,  140. 

Penalty  of  S500  for  failing  to  make  return,  or  pay  over  money  received,  140. 

County  court  may  pay  clerk  for  extra  services,  141. 

Fees  for  services  concerning  corporations  created  by  letters  patent,  136. 

Penalty  of  S200  on  clerks  issuing  process  without  security,  165. 

To  docket  names  of  parties,  sureties  for  costs,  and  bail,  165. 

Clerk  of  superior  court  to  publish  appointment  of  special  term,  160. 

To  certify  appointments  of  guardians  in  his  court  to  county  court,  319. 

Clerks  to  receive  same  fees  for  report,  as  masters  in  equity,  179. 

To  give  notice  of  State's  daj',  234. 

Executions  to  be  issued  in  six  weeks,  under  penalty  of  SlOO,  280. 

Clerk  of  county  court,  omitting  any  duty  about  election  of  governor,  to  pay  $100,  314. 

To  summon  guardian  failing  to  renew  bond  or  render  account,  319. 

Shall  be  clerk  of  board  of  superintendents  —  His  duty,  383. 

AUowed  for  services,  and  paid  out  of  school  fund,  389. 

To  record  commission  of  commissioner  of  affidavits,  125. 

Certificates  of  marriage  to  be  recorded  by  clerk  of  county  court,  391. 

Penalty  on  clerk  issuing  license  to  marry  female  under  fifteen  years,  393. 

Clerks  of  county  and  superior  courts  may  act  as  notaries  and  certify  under  seal  of  office,  482. 

To  hold  office  till  successors  appointed,  444. 

Mames  of  justices  at  qualification  of  clerk  of  county  court  to  be  recorded,  446. 
acting  justices  furnished  to  secretary  by  clerk  of  county  court,  489. 
On  request  to  hand  over  deeds,  and  register  fees,  ten  days  after  court,  497. 

To  furnish  sheriffs,  ten  days  after  court,  with  orders  appointing  overseers,  684. 
Fees  of  clerks  of  county  court  on  mesne  process  —  on  final  process,  547. 
For  proving,  recording,  filing,  searching,  certifying,  and  entering  on  minutes,  547. 
For  copying  —  bonds  —  licenses — notices,  &c.,  548. 

JTees  of  clerks  of  superior  court,  548. 


INDEX.  643 

CLERKS  OF  COUNTY  AND  SUPERIOR  COURTS,  ( Cmtinued). 

Clerks  to  have  no  fees  on  capias  in  certain  cases,  548. 

In  certain  State  cases  to  liave  only  half  fees,  biS. 

To  keep  a  copy  of  their  fees  posted  up  in  office,  550. 

May  issue  execution  for  fees,  in  certain  cases,  550. 

After  judgment  defendant  may  pay  the  money  to  clerk,  184. 

Clerk  to  pay  it  to  party  entitled,  165. 

Fees  due  clerks  by  residents,  to  he  collected  in  three  years,  374. 

Malicious  burning  clerk's  office,  punished  with  death,  203. 

Suits  on  bonds  of  clerks  to  be  brought  in  six  years,  373. 

Suits  and  summary  remedy  on  bonds  and  by  motion  —  see  Official  Bonds. 

Money  remaining  in  hands  of  clerks  —  see  Money  remaining,  if  c. 

Duties  of  clerks  of  county  court  respecting  the  revenue  —  see  Revenue. 
CLERKS  OF  SUPREME  COURT. 

Appointed  by  judges  for  four  years,  197. 

To  give  bond  for  discharge  of  duty,  and  take  oaths,  197. 

Form  of  oath,  436. 

Offices  of  clerks,  where  kept,  197. 

Pay  for  recording  such  papers  as  the  court  may  direct,  198. 

May  certify  opinion,  and  issue  execution,  &c.,  when,  198. 

Certificates  of  decisions  transmitted  by  clerk  to  court  below,  199. 

Failing  for  twenty  days  after  rise  of  court  to  transmit,  &c.,  to  pay  $100,  200. 

Shall  issue  executions  for  costs  iu  supreme  court,  199. 

Tax  on  attorneys'  licenses  expended  by  clerk  for  books,  487. 

Salary  and  fees  of  clerks,  550. 

Money  remaining  in  office,  &c.,  —  see  Money  remaining, 
COAL.     See  Pilots,  Revenue. 

COAL  VESSELS  — THEIR  PRIVILEGES.     See  Filoia. 
COLLATERAL  RELATIONS. 

Tax  on  property  of —  see  Revenue,  507. 

Representatives  of — see  Descents,  Legacies,  (fc. 
COLOR  OF  TITLE.     See  Limitations. 
COMMISSIONERS  OF  AFFIDAVITS. 

Clerk,  and  clerk  and  master  to  be  commissioners  to  take  affidavits,  124. 

Governor  may  appoint  commissioners  to  take  probate  of  deeds,  in  other  States,  125. 

Shall  take  and  subscribe  an  oath  to  be  filed  in  secretary's  office,  125. 

Their  power  .and  authority,  125. 

Commission  to  be  recorded  by  secretary,  and  certified  to  clerks  of  county  courts,  and  recorded,  125. 

Certified  copies  of  appointment  or  removal,  evidence,  125. 

Fees  of  commissioners  of  affidavits,  553. 
COMMISSIONERS    IN   PROCEEDINGS   TO    DRAIN,   &c.,    LOW    L.AJ^DS.     See   Draining  and 

Damming  Low  Lands. 
COMMISSIONERS  OF  NAVIGATION.     See  PUots. 
OF  TOWNS.     See  Towns. 
OF  WRECKS.     See  Wrecks. 
Form  of  oath,  436. 
COMMISSIONERS,  PUBLIC. 

Not  to  become  contractors  on  pain  of  misdemeanor,  210. 
COMMISSIONERS   TO   CONDEMN  LANDS   FOR  INTERNAL  IMPROVEMENT.     See   Initiiml 

Improvement. 
COMJIISSIONERS  TO  DIVIDE  LANDS.     See  Partition. 

Form  of  oath,  436. 
COMMISSIONERS  TO  ENFORCE  REVENUE  PENALTIES.     See  Revenue,  508. 
COMMISSIONS  OF  COMMISSIONERS  OF  WRECKS.     See  Wrecks. 
OF  EXECUTONS  AND  ADMINISTRATORS,  288. 
OF  GUARDIANS,  317,  322. 


644 


INDEX. 


COMMISSIONS  OF  SHERIFF.    See  Revemie,  Salaries  and  Fees,  Shves  and  Free  Negroa. 

To  have  no  commissions  on  justices'  executions,  550. 
COMMON  LAW. 

Wliat  parts  of  tlie  common  law  in  force  in  the  State,  126. 
COMMON  SCHOOLS.     See  Literary  Fund,  and  (hmmon  Schools. 
COMPTROLLER. 

Elected  biennially  by  General  Assembly,  126. 

To  give  bond  in  $20,000,  126. 

Bond  taken  by  governor,  and  deposited  with  treasurer,  126. 

To  take  the  oaths  of  officers,  126. 

His  oath  of  office,  437. 

To  settle  all  public  accounts,  and  keep  books,  127. 

To  keep  an  account  with  treasurer  and  individuals,  127. 

Public  money  recovered  by  suit,  paid  to  treasurer,  and  receipts  filed  with  comptroller,  127. 

Balances  of  accounts  to  be  amiually  stated  and  reported,  127. 

To  report  yearly  a  printed  statement  of  the  treasury  accounts,  127. 

To  be  published,  in  non-legislative  year,  in  two  papers,  126. 

May  administer  oaths  in  certain  cases,  128. 

No  warrants,  &c.,  to  be  paid,  unless  firet  entered  and  certified  by  comptroller,  128. 

Shall  keep  instrument  for  cancelling  vouchers,  128. 

Sheriff  to  render  to  comptroller  the  amount  of  each  kind  of  tax,  626. 

To  deliver  him  a  list  of  money  received  from  clerks,  and  unlisted  taxable?,  626. 

Comptroller  to  report  to  treasurer  amount  due  from  each  tax  receiver,  525. 
shall  certify  a  copy  thereof  to  clerk  of  county  court,  525. 

With  what  taxes  he  shall  charge  and  credit  tax  receivers,  525. 

Suspecting  fraud  or  perjury  concerning  revenue,  to  inform,  &c.,  627. 

Copy  of  sheriff's  bond  to  be  furnished  comptroller  by  clerk,  528. 

Copy  of  clerk's  bond  to  be  furnished  comptroller  by  register,  528. 

Comptroller  how  to  proceed  when  copy  not  furnished  by  register,  528. 

Sheriff  failing  to  settle,  comptroller  to  report  his  account,  and  add  $1,000,  628. 

Monthly  settlement  to  be  made  between  comptroller  and  treasurer,  593. 

No  receipt  of  treasurer  good,  without  comptroller's  indorsement,  593. 

Comptroller  to  indorse  on  certificates  of  State  stocks,  when  credited  to  treasurer,  694. 

To  furnish  clerks  with  printed  forms  of  abstracts,  518. 

Salary  of  comptroller,  542. 
CONGRESS.     See  Members  of  Congress. 
CONSTABLES. 

To  be  annually  elected  in  each  captain's  district  —  At  what  time,  129. 

Qualifications  of  electors  —  Judges  of  election,  how  appointed,  129. 

Notice  to  be  given  —  Returns  of  election,  made  to  county  court,  129. 

Number  of  constables  in  each  county  and  district,  129. 

To  qualify  before  county  court,  and  give  bond,  129. 

Names  of  justices  present  to  be  recorded,  446. 

Bond,  how  conditioned  —  Oaths  to  be  taken,  130. 

Form  of  his  oath,  437. 

If  not  elected,  or  election  tied,  appointed  by  county  court,  129. 

Contested  elections  decided  by  county  court,  129. 

Vacancies  in  office  filled  by  county  court,  130. 

Power  and  duty  in  executing  process,  130. 

Shall  execute  notices  issued  by  justices,  130. 

Returns  of,  to  be  evidence,  130. 

Special  constables,  in  certain  cases,  appointed  by  justice,  130. 

Constables  failing  to  execute  process,  or  making  false  returns,  guilty  of  misdemeanor,  22(. 

Or  acting  without  authoritj',  226. 

Penalty  for  neglecting  to  execute  executions  from  courts-martial,  407. 

Liable  for  whole  debt  put  in  his  hands,  when,  445. 

Sworn  in  office,  to  be  deemed  rightfully  in,  &c.,  444. 

Exempt  from  working  on  roads,  541. 


# 


INDEX.  645 

CONSTABLES,  ( Cmtinued). 

Fees  of  constables,  551. 

Town  constables  appointed,  589. 

Their  oatli,  powers,  and  duties,  590. 

Constable  attending  petit  jury,  to  be  sworn  — for  what  purpose,  164. 

Form  of  his  oath,  440. 

Foi-m  of  oath  of  constable  of  grand-jurj'-,  440. 

Suits  on  constable's  bonds,  to  be  brought  in  six  years,  373. 
bond,  and  damages  —  see  Official  Bonds* 

Summary  remedy  against  —  see  Official  Bonds. 
CONSTABLES  OF  TOWNS.    See  Towns. 
CONSTITUTION  OF  STATE,  12. 

OF  UNITED  STATES,  34. 
CONSPIRACY  OF  SLAVES.    See  Slaves  and  Free  Negroes. 
CONSTRUCTION  OF  WORDS  AND  PHRASES,  IN  DEEDS  AND  WILLS.     See  Estates—  Wills 

and  Testaments. 
CONSTRUCTION  OF  WORDS  AND  PHRASES  IN  STATUTES.     See  Statutes,  cj-c. 
CONTEMPT  OF  COURT. 

What  shall  be  a  contempt  of  court,  226. 

Particulars  of  contempt  to  be  specified,  &c.,  226. 
CONTRACTS. 

To  sell  land,  and  leases  required  to  be  in  writing,  must  be  registered,  246. 

For  sale  of  land,  slaves,  and  leases  for  mining,  void,  unless  in  -writing,  300. 

Contracts  charging  executors,  &c.,  personally,  to  be  in  writing,  801. 

Or  one  with  the  debt,  &c.,  of  another,  301.  ' 

With  Indians,  to  be  in  writing  and  witnessed,  301. 

All  gaming  or  betting  contracts,  void,  302. 

Securities,  also,  for  money  or  property  lent  for  betting,  302.  . 

Females  under  fourteen,  and  males  under  sixteen  years,  incapable  of  contracting  marriage,  393.  "/ 

Contracts  to  purchase  offices,  void,  444. 

by  court  for  building  bridges,  binding,  537. 

presumed  to  be  satisfied  after  ten  years,  375. 

with  minors,  students  of  the  university,  void,  unless  by  permission,  596. 

Hovr  avoided,  —  incapable  of  confirmation,  596. 

Overseers  leaving  employment,  to  forfeit  wages,  449. 
CONVEYANCES.    See  Deeds  — Frattds  and  Fraudulent  Conveyances. 
COOPERS  AND  COOPERAGE.    See  Jnspections. 
COPY  SHEET. 

Dates  and  figures,  how  reckoned  in  estimating  fees  of  clerks,  &c.,  654. 
CORDIALS. 

Dealers  in,  tax  on,  611. 
CORONER. 

One  or  more  appointed  bj'  a  majority  of  justices,  131. 

Names  of  justices  present  to  be  recorded,  446. 

Oaths  and  bond  of,  —  Bond  in  $2,000,  renewed  annually,  131. 

Form  of  oath,  437. 

Vacancies  in  recess  filled  till  next  court  by  three  justices,  131. 

Special  coroner,  in  certain  cases,  appointed  by  three  justices,  131. 

Bond  to  be  proved  and  registered,  131. 

Coroner  sworn  in  office,  to  be  deemed  rightfully  in,  until,  &c.,  444. 

T»  hold  inquests:  His  duty  on  such  occasion,  131. 

Physicians  and  surgeons  may  be  summoned  to  assist,  132. 

And  shall  be  paid  for  their  services,  132. 

When  no  sheriff,  coroner  to  act  and  be  liable  as  sheriff,  132. 

Notices  to  be  served  by  coroner,  if  sheriff  be  interested,  164. 

Where  no  sheriff,  coroner  to  hold  elections,  308. 

Fees  of  coroner,  551. 


646 


INDEX. 


COROKER,  { Continued). 

Duty  of  coroner,  when  sheriff  removed  from  office  —  see  Sherijff,  659. 

To  give  bonds,  and  take  oaths,  &c.,  569. 

Suits  on  coroners'  bonds  to  be  brought  in  six  years,  373, 

bond,  and  damages  —  see  OJJicial  Bunds. 
Summary  remedy  against  —  see  Official  Bonds. 
CORPORATIONS. 

General  powers  of,  133. 

First  meeting,  how  notified  when  not  specially  provided,  133. 

Lands  may  be  held  and  conveyed,  134. 

To  continue  three  years  after  charter  expires,  to  close  business,  134. 

On  expiring,  receivers  or  trustees  appointed  to  settle  affairs;  their  powers,  134. 

To  pay  debts  and  distribute  surplus,  134. 

Equity  jurisdiction  over  receivers,  &c.,  given  to  court,  134. 

What  executions  to  issue,  and  what  may  be  sold  —  Franchises,  &o.,  134. 

Who  deemed  highest  bidder,  when  franchise  sold,  135. 

OlBcer  selling  to  convey  right  of  fare,  toll,  &c.,  135. 

And  deliver  property  connected  with  franchise,  135. 

Purchaser  to  have  same  remedy  as  corporation  for  damages,  &c.,  135. 

Liabilities  of  corporation  to  continue  after  sale,  135. 

Charitable,  literary,  mining,  and  manufacturing,  how  created,  135. 

Corporators  to  enter  into  articles  of  agreement,  135. 

Shares  not  less  than  $50, 136. 

Such  corporations  created  by  letters  patent  issued  by  governor,  136. 

Notice  of  incorporation  and  substance  of  articles  to  be  published,  136. 

Fees  of  clerk  of  court  and  private  secretary,  136. 

No  dividends,  if  debts  exceed  two  thirds  of  assets,  136. 

Letters  patent  to  be  recorded  by  secretary  —  copies  evidence,  136. 

Letters  prima  facie  evidence  of  incorporation,  136. 

Such  companies  forbidden  to  bank,  137. 

Conveyances  by  deed,  how  made  by  corporations,  137. 

Suits  against,  at  law,  commenced  by  summons — In  equity,  by  subpoena,  137 

Process,  on  what  officer  or  member  to  be  served,  137. 

Infoi-raation  against — what  to  be  set  forth  therein,  137. 

Costs  to  be  secured,  in  information  by  relators,  137. 

Supreme  court  may  ascertain  the  facts,  how,  138. 

Attorney-general  may  file  bill  to  restrain  corporations  from  excesses,  138. 

To  enforce  duties,  prevent  frauds,  &c.,  and  remove  dishonest  trustees,  188. 

Corporations  not  to  exist  more  than  thirty  years,  unless,  &c.,  138. 

Debts  of,  not  extinguished  by  dissolution,  138. 

Shares  in,  to  be  personal  estate,  138. 

Non-user  for  two  years,  forfeiture  of  charter,  138. 

Not  to  issue  certificates,  &c.,  nor  any  kind  of  circulation,  237. 

Word  "  person  "  may  embrace  corporations,  581. 

Burning  their  houses  in  which  archives  are  kept,  &c.,  felony,  203. 
COSTS. 

Plaintiff  appealing  and  not  recovering  more,  to  have  no  costs,  74. 

May  be  ordered  to  pay  costs,  74. 

To  be  paid  by  attorney  when  suit  dismissed  for  want  of  declar.atioD,  102. 

By  bail  in  certain  cases,  althougli  discharged,  107. 

To  be  secured  by  relators  informing,  137. 

In  certain  cases  of  prosecution  paid  by  county,  141. 

County  wherein  offence  done,  to  pay  costs  and  receive  fines,  &o.,  141. 

Plea  in  abatement  overruled,  plaintiff  to  recover  costs,  170. 

Parly  continuing  case  may  be  ordered  to  pay  costs,  170. 

On  final  judgment  witness  tickets  taxed  with  costs,  176. 

Party  cast,  taxed  with  but  two  witnesses  to  prove  same  fact,  176. 

Party  recovering  to  liave  judgment  for  costs,  176. 

What  reckoned  among  costs,  176. 


INDEX.  647 

COSTS,  (  Continued). 

In  petitions  to  be  paid  as  court  may  direct,  176. 

In  suits  for  slander,  and  assault  and  battery,  if  damages  be  under  34,  no  greater  costs  recovered,  177. 

In  trespass,  ejectment,  &c.,  against  several,  those  acquitted  to  recover  costs,  unless,  &c.,  177. 

In  appeals,  &c.,  from  justice,  court  may  require  plaintiif  to  secure  costs,  ISl. 

Plaintiff  appealing  from  justice,  and  not  increasing  judgment,  to  have  no  costs,  181. 

Charges  of  survey  to  be  taxed  as  costs,  183. 

•Judgraeut  for  costs  against  plaintiff  and  sureties,  failing  in  suit,  184. 

Decreed  at  discretion  of  court  of  equity,  except  iu  certain  cases,  190. 

May  be  decreed  against  sureties  of  plaintiff,  190. 

Prosecutor  in  certain  cases,  ordered  to  pay  costs,  235. 

To  be  paid  by  defendant  in  criminal  cases,  when,  236. 

Rale  as  to  costs  in  cases  of  divorce,  252. 

Pay  of  commissioners  for  draining,  &c.,  low  lands,  taxed  among  costs,  258. 

Costs  of  appeals,  in  petitions  to  drain,  &c.,  paid  as  court  shall  direct,  258. 

On  executions  to  be  paid  to  clerks  under  penalty  of  $40,  280. 

Of  habeas  corpus,  how  and  by  whom  paid,  327. 

On  proceedings  to  condemn  land,  &c.,  paid  by  company,  360. 

On  malicious  warrants  for  the  peace  and  petty  offences,  justice  may  order  prosecutor  to  pay  costs,  367. 

Wliere  damage  by  ereotiou  of  mills  under  $b,  how  paid,  429. 

Plaintiff  appealing  in  mill  oases,  to  pay  costs,  unless  he  recovers  more,  429. 

Of  partition  paid  as  court  m.ay  decree,  453. 

Of  informations  adjudged  to  the  party  succeeding,  496. 

In  appUcation  for  roads,  ferries,  &c.,  paid  as  court  may  decree,  533. 

Bill  of  costs  to  show  each  item  when  execution  issued  therefor,  550. 

Owner  of  slaves  prosecuted,  liable  for  costs,  577. 

On  warrant  against  executor,  &c.,  returned  to  court,  how  adjudged,  288. 
COUNCIL  OF  STATE.     See  Governor  and  Council. 
COUNSELLORS  OF  STATE.    See  Governor  and  Council. 

Their  pay,  544. 
COUNTERFEITING.    See  Crimes  and  Punishments. 
COUNTY  BOUNDARIES. 

Disputed  lines  between  counties,  how  settled,  139. 

Commissioners  to  be  sworn:  Persons  employed  to  be  paid,  139. 

MiUtary  boundaiy  to  be  the  true  one,  till  otherwise  fixed,  139. 
COUNTY  COURTS.     See  Cmrts,  County  and  Superior. 
COUNTY  REVENUE  AND  CHARGES. 

Tax  for  county  purposes  to  be  laid  by  majority  of  justices,  140. 

Collected  by  sheriff  as  State  taxes  are,  140. 

Fines,  forfeitures,  &c.,  paid  to  county  trustee,  140. 

Tax  of  $1  on  indictments  and  suits;  and  $2  on  equity  suits,  140. 

Fines,  penalties,  forfeitures,  &c.,  to  be  collected  by  sheriff  and  paid  in  three  months  thereafter,  140. 

Statement  of  fines  rendered  by  clerks,  yearly,  on  1st  January,  140. 

Penalty  of  $500  on  clerks,  sheriffs,  &c.,  failing  to  pay  over  county  money,  140. 

Costs  of  prosecutions  to  be  paid  by  county,  in  certain  oases,  141. 

Witnesses  for  State  paid  by  county,  when,  141. 

County  wherein  offence  is  done,  to  pay  costs  and  receive  fines,  &c.,  141. 

County  court  may  pay  sheriff,  clerk,  or  solicitor,  for  extra  services,  141. 

Claims  against  county  to  be  immbered  by  clerk,  and  list  yearly  furnished  chainnan,  141. 

Penalty  of  $20  on  clerk,  for  failure:  His  fee  for  the  service,  141. 

Statement  of  county  money  received  and  paid  out  to  be  set  up  in  court  house,  142. 

County  tax  levied  for  deaf  mutes,  &c.,  when  parents  cannot  pay,  82. 

Penalty^ for  failure  to  levy  tax,  S3. 

County  tax  levied  to  support  its  indigent  insane,  91. 

Justices  to  lay  tax  to  build  court  houses,  jails,  c&c,  145. 

Also  for  school  purposes,  384. 

Collected  by  sheriff,  payment  how  enforced,  384. 

To  lay  tax  to  pay  patrol,  469. 


648  INDEX. 

COUNTY  REVENUE  AND  CHARGES,  {Qmtinued). 

To  support  the  poor,  471. 

May  lay  tax  to  pay  jurors,  142. 

Power  of  court  iu  disposing  of  county  funds,  142. 

Committee  of  finance  for  tlie  county  may  be  appointed,  142. 

Their  duty  and  powers,  142. 

To  investigate  county  finances  and  report  to  court:  — Their  pay,  142. 

Officers  failing  to  settle  with  committee  after  ten  days'  notice,  to  forfeit  $100, 142. 
COUNTY  SOLICITORS.    See  Atlorneij-General  and  Solicilort. 
COUNTY  SURVEYOR.    See  Surveys  and  Surveijors. 

Fees  of,  562. 

Suits  ou  his  bond  to  be  brought  in  six  years,  372i 
COXfi^TY  TRUSTEES. 

Appointed  yearly  by  a  court  of  a  majority  of  justices,  143. 

Vacancies  filled  by  court,  143. 

To  give  bond  and  take  oaths,  143. 

Form  of  oath,  443. 

Fines,  forfeitures,  &c.,  to  be  paid  to  him,  140. 

To  collect  by  suit  or  otherwise  all  moneys  due  county,  143. 

To  call  to  yearly  account,  at  first  court  after  1st  January,  sherifls,  clerks,  &c.,  144. 

On  failure  to  pay,  to  take  summai-y  judgment,  144. 

Also  for  SlOO,  penalty  for  their  neglect,  144. 

Trustee  neglecting  to  collect,  liable  as  for  collection,  and  for  the  penalty,  144. 

To  settle  with  sheriff'  for  claims  as  numbered,  144. 

Compensation  of  county  trustee,  144,  551. 

To  settle  yearly  with  first  court  held  after  1st  of  June,  144. 

Penalty  of  SIO  for  other  breaches  of  duty,  144. 

Office  of,  abolished  and  revived  at  discretion  of  court,  144. 

When  abolished,  duties  to  devolve  on  sheriff",  145. 

To  collect  money  accniing  from  strays,  684. 

Suit  on  bond  of  county  trustee  to  be  brought  in  six  years,  373. 
COUPONS.     See  Puilic  Debt. 
COURT  HOUSES,  PRISONS,  &c. 

Court  houses,  jails,  stocks,  and  pillory  to  be  built,  &o.,  by  eounty  court,  145. 

County  court  to  lay  tax  for  such  purposes,  145. 

Jails  to  have  four  separate  comfortable  apartments,  145. 

To  be  visited  at  each  court  by  grand-jury,  146. 

A  treasurer  of  public  buildings  may  be  yearly  appointed  by  a  majority  of  court,  146. 

To  give  bond  —  His  duties  and  compensation,  146. 

Vacancies  to  be  filled  by  court,  146. 

To  settle  his  accounts  yearly  with  the  court,  146. 

Or  judgmont  on  motion  against  him  and  sureties,  and  for  penalty  of  $100, 148. 

Recommending  repairs,  &c.     What  to  be  done,  146. 

Burning  of  court  house  punishable  with  death,  203. 
COURT  OF  WARDENS.     See  Poor. 
COURTS,  COUNTY  AND  SUPERIOR. 
CousTY  Courts. 

Justices  of  the  peace  to  be  judges  of  courts  of  pleas  and  quarter-sessions,  151. 

At  what  time  courts  shall  be  held,  in  the  several  eounties,  151. 

May  sit  six  days  —  Unfinished  business  continued,  164. 

One  justice  may  adjouni  daily  for  three  days,  &c.,  164. 

Court  nor  process  discontinued  by  failure  to  sit,  or  changing  time  of  term,  164.  , 

Three  justices  may  hold  court,  164. 

Jurisdiction  in  civil  and  criminal  pleas,  164. 

Executions  from  county  court  may  issue  to  any  county,  178. 

Court  may  appoint  a  chairman,  165. 

Special  court  may  be  appointed  by  majority,  &c.  —  Their  pay,  156. 


INDEX.  649 

COURTS,  COUNTY  AND  SUPERIOR,  {Continued). 
CouMTY  Courts. 

May  purchase  necessary  law-books,  155. 

Penalty  on  clerk  for  not  taking  care  of  them,  155. 

County  court  may,  np  to  first  of  March,  receive  tax  lists,  519. 

Double  tax,  in  what  cases  may  release,  620. 

To  have  jurisdiction  of  probate  of  wills,  609. 

For  proceedings  on  probate.  —  See  Wilts  and  Testaments. 
Superior  Courts. 

To  be  held  twice  a  year,  in  each  county,  155. 

State  divided  into  seven  judicial  circuits,  155. 

Counties  composing  each  circuit,  and  time  of  holding  courts  therein,  155. 

Court  may  continue  longer  than  a  week  in  capital  cases,  159. 

To  be  held  by  judges  of  integrity  and  skill  in  the  law,  159. 

Jurisdiction  and  powers  of  the  courts,  and  judges,  159. 

To  have  original  jurisdiction  in  felonies,  &c.,  committed  by  slaves,  571. 

Judges  to  be  selected  from  the  State  at  large,  159. 

To  be  appointed  for,  and  to  reside  in,  some  particular  district,  159. 

Shall  take  and  subscribe  oaths,  to  be  deposited  with  secretary  of  State,  159. 

Form  of  his  oath  of  office,  439. 

Penalty  of  S2,000  for  acting  without  qualifying,  160. 

Shall  ride  according  to  present  arrangement  of  circuits,  160. 

Ridings  to  be  published  before  February  and  August,  160. 

Not  to  ride  same  circuit  twice  successively,  but  may  exchange  courts,  160. 

Judge  not  attending  first  day,  sheriff  to  adjourn  daily  till  third  day,  160. 

Recognizances,  &c.,  to  stand  continued  in  such  case,  160. 

Special  term  when  neces.sary,  appointed  by  presiding  judge,  160. 

Governor  to  bo  notified,  and  to  appoint  a  judge  thereof,  160, 

Clerk  to  publish  the  court,  160. 

Special  court  may  continue  till  a  trial  begun  is  finished,  160. 

Pay  of  judge  holding  special  term,  160. 

To  have  the  powers,  &c.,  of  other  judges,  160. 

No  process  except  subpoenas  returnable  thereto,  161. 

All  persons  to  attend  in  civil  cases,  as  at  regular  terms,  161. 
Jury. 
Jury  list  to  be  made  from  taxable  freeholders,  only  of  persons  well  qualified,  161. 
To  contmue  during,  and  be  examined  at  the  end  of  two  years,  161. 
List  to  be  kept  securely  in  a  box,  161. 
Number  drawn  for  superior  courts,  and  how  drawn,  161. 

for  county  courts,  and  how  drawn,  162. 
Persons  having  suits  in  court,  not  to  be  drawn,  162. 
Nor  justices,  for  county  court,  162. 
Jurors  for  special  terms,  how  provided,  162. 
Court  failing,  sheriff,  clerk,  and  three  justices  to  draw  them,  162. 
Jury,  at  two  terms  of  county  court,  may  be  dispensed  with,  162. 
Jurors  to  be  summoned  —  to  attend  till  discharged,  162. 
Tales  jurors  summoned  in  case  of  deficiency,  163. 
Regular  jurors  not  attending,  fined  $20,  163. 
Jlay  make  excuse  at  next  term,  163. 
Tales  jurors  failing  to  attend,  fined  S2, 163. 
Jurors  exempt  from  service  of  civil  process,  when,  163. 
Regular  ministers  of  gospel,  physicians,  postmasters,  registers,  and  keepers  of  public  mills,  exempt 

from  jury,  163. 
Petit  jurors,  how  sworn  in  civil  cases,  163. 
Form  of  oath,  440. 

How  sworn  in  State  cases,  not  capital,  163. 
Form  of  oath,  440. 

Right  of  challenge  not  affected  by  being  sworn,  163. 
Jurors'  uames  before  impanelled  to  be  called  in  hearing  of  parties,  163 

55 


650  INDEX. 

COURTS,  COUNTY  AND  SUPERIOR,  {Canthiued). 
SuPEnioB  Courts. 

Four  may  be  challenged  in  civil  cases,  163. 

Constables  attending  juries  to  be  sworn :  For  what  purpose,  164. 

Grand-jury,  how  many,  and  how  to  be  drawn,  163. 
Practice,  Pleas,  and  Process. 

Venue  of  actions,  164. 

When  plaintiff  resides  out  of  the  State,  164. 

When  plaintiff  and  defendant  reside  in  different  counties,  164. 

Defendant  not  to  be  sued  in  superior  court  out  of  his  county  for  less  than  3100,  164. 

Actions  otherwise  brought  may  be  abated,  164. 

Not  to  be  brought  in  court,  on  bond,  &c.,  for  less  than  $100, 164. 

Or  for  penalty,  or  on  justices'  judgment,  or  balance  of  bond,  &c.,  under  f  100,  164. 

Or  for  unliquidated  demands  for  $60  and  under,  165. 

Otherwise  brought,  abated  on  plea,  165. 

Or  if  the  matter  appear,  dismissed  on  motion,  165. 

Penal  bonds  over  f  100  exoej)ted,  165. 
Process. 

Day  of  issuing  process,  to  be  noted  thereon,  165. 

Day  of  receipt  and  execution  by  officer,  indoi-sed,  165. 

Penalty  $100  on  clerk  and  officer  neglecting  this  duty,  165. 

Security,  unless  in  suit  by  pauper,  to  be  given  before  issued,  165. 

Or  else  dismissed,  165. 

Penalty  $200  on  clerk  issuing  process  without  security,  165. 

Poor  persons  may  sue  without  security,  165. 

To  have  counsel  assigned  them  —  their  duty,  166. 

Names  of  parties,  sureties  for  costs,  and  bail,  to  be  docketed  by  clerk,  165. 

Process  in  same  suit  may  issue  at  once  to  several  counties,  166. 

Process,  subpoenas,  &c.,  when  to  be  returned;  how  long  before  court  executed,  167. 

Attachment  or  alias  may  issue  on  return  of  defendant  "  not  to  be  found,"  168. 

Wlien  sheriff  returns  defendant  resides  in  another  county,  aUas  to  issue  thereto,  168. 

Process  not  to  be  executed  on  Sunday,  day  of  election,  or  muster,  168. 

Nor  on  jurors  or  witnesses,  168. 

When  directed  to  sheriff  of  adjoining  county,  168. 

Sheriff  executing  process  out  of  his  county,  to  have  extra  pay,  168. 

Real  plaintiff  in  ejectment  to  give  prosecution  bond,  else  suit  dismissed,  166. 

Defendant  in,  to  give  bail,  &c.,  else  not  allowed  to  plead,  166.. 

Plaintiff  in  ejectment  makmg  affidavit  that  defendant  entered  as  his  tenant,  on  what  terms  plea 
allowed,  166. 

On  the  trial,  jury  to  find  the  facts,  167. 

If  for  the  plaintiff,  shall  assess  damages  for  waste  and  occupation,  167. 

Vleapuis  darrein  of  entry  by  plamtiff  since,  &c.,  not  received  without  affidavit,  and  payment  of 

costs,  167.  I-       ,^T 

After  such  plea,  jury  in  certain  cases,  to  assess  damages  for  waste  and  occupation,  167. 
Appearance  of  defendant  in  jail,  entered  by  plaintiff,  168. 
Seal  of  court  not  to  be  put  to  process  executed  in  county,  183. 

Rules  of  Court. 

■       1.  Declaration  to  be  filed  in  first  three  days  of  term,  or  suit  dismissed,  169. 

2.  Defendant  to  appear,  and  plead,  or  demur  at  the  same  term,  169. 
"   When  special  pleading  required,  time  enlarged,  169. 

"  Writ  of  inquiry  in  certain  cases  executed  at  rendition  of  judgment,  169. 

3.  Plaintiff  to  reply  or  demur  at  same  term,  and  pleadings  be  completed,  unless,  &c.,  169. 

4.  Time  may  be  allowed  to  argue  demurrer,  or  special  verdict,  169. 

5.  Parties  may  appear  in  their  own  suits,  170. 

"  Instrximents  of  writing  merely  informal,  not  to  be  lost,  170. 

6.  Proceedings  of  court  to  be  entered  by  clerk  in  well-bound  book,  170. 

7.  .Jury  causes  shall  be  first  tried,  170. 

8.  Motions  in  arrest  of  judgment,  on  notice  of  reasons,  when  argued,  170. 

9.  Argument  causes,  when  to  be  heard,  170. 


651 


COURTS,  COUNTY  AND  SUPERIOR,  ( Continued). 
SurEuion  Courts. 

10.  Plea  in  abatement  received  only  on  affidavit,  or  proof,  170. 

11.  Wlien  overruled,  plaintiff  to  recover  costs,  170. 

"    As  many  pleas  as  necessary  may  be  pleaded,  170. 

12.  Plea  since  the  last  continuance  no  ^raiver  of  fonner  pleas,  170. 

13.  Issues  to  be  tried  at  the  first  term  after  made  up,  170. 

"    Continuance  of  causes  to  be  only  by  consent,  or  on  affidavili,  170. 

14.  Party  continuing  may  be  ordered  to  pay  costs,  170. 

15.  One  attorney  only  to  speak,  unless  allowed  by  court,  170. 
"    May  argue  to  the  jury  law  and  fact,  170. 

16.  Power  of  attorney  to  be  produced  and  filed,  unless,  &c.,  171. 
"    If  necessary  to  be  retained,  what  to  be  done,  171. 

In  actions  on  penal  bonds,  &c.,  plaintiff  may  assign  many  breaches,  171. 

Also  onjudgment  for  plaintiff  on  demurrer,  by  default,  &c.,  171. 

And  judgment  shall  remain  a  security  for  future  breaches,  171. 
Witnesses.  ' 

Subpoenas  for,  to  be  issued  by  clerk  —  How  to  issue,  172. 

Not  returnable  immediately,  unless  issued  in  term  —  then  served  personally,  172. 

If  issued  in  vacation,  served  personallj',  or  hy  leaving  a  copy,  172. 

Witnesses  to  attend  from  terra  to  term,  till  discharged,  172. 

Penalty  for  not  attending:  In  civil  oases,  5^40.    In  criminal,  S80,  172. 

To  be  paid  for  attending  after  suit  settled  in  vacation,  unless,  &c.,  1T2. 

No  execution  to  issue  against  defiiulting  witness,  till  after  set.  fa.,  173. 

Witnesses  attending  a  jury  of  view,  or  commissioners,  to  be  paid,  174. 

Subpoena  to  attend  commissioners  and  others,  in  certain  cases  issued  by  clerk,  175. 

Refusing  to  give  evidence  in  court,  to  be  imprisoned,  175. 

During  attendance,  exempt  from  service  of  civil  process,  175. 

Fees  of  witnesses  for  attendance  at  court,  175. 

To  prove  at  each  court  by  own  oath  his  attendance,  175. 

May  recover  his  fees  of  the  party  summoning,  176. 

Subpoena  duces  tecum  may  issue  in  certain  cases,  177. 
Depositions. 

May  be  taken  before  or  after  issue,  mthout  special  order,  173. 

General  rules  for  takiug  may  be  established  by  court,  173. 

General  rules,  173. 

To  be  taken  under  rules  of  court  when  established,  or  special  order,  173. 

Under  sealed  commission,  if  taken  out  of  the  county,  173. 

Commissioner  to  be  of  kin  to  neither  party,  173. 

To  be  passed  ou  by  clerk,  173. 

Notice  to  be  given  to  adverse  party  of  the  taking,  173. 

Deposition  of  governor  and  others  may  be  read,  173. 

Witnesses  may  be  summoned  to  give  their  depositions,  173. 

Refusing  to  depose,  to  be  committed  to  jail,  174. 

Committitur  to  recite  the  authority  and  cause  of  committing,  174. 

Sheriff  to  summon  witness  before  commissioners  on  pain,  &c.,  174. 

Defaults  of  witnesses  to  be  noted  by  commissioner,  174. 

If  made  before  commissioner  of  another  State,  witness  to  be  fined  $50, 174. 

What  to  bo  evidence  of  the  default,  174. 

Det;uilt  before  commissioner  of  this  State,  to  be  certified  to  court,  174. 

Proceedings  tliereon,  174. 

After  removal  of  causes,  subpoenas  may  issue  from  either  court,  175. 

On  final  judgment,  witness  tickets  to  be  taxed  with  costs,  176. 

Party  cast,  taxed  with  but  two  witnesses  to  prove  same  fact,  176. 

MlSCELLAKEOL'S. 

Party  recovering  shall  have  judgment  for  costs,  unless,  &c.,  176. 

Wliat  shall  be  reckoned  among  costs,  176. 

Depositions  to  be  read  in  petitions,  179. 

Costs  of  petitions  to  be  paid  as  court  may  decree,  176. 


652  INDEX. 

counts,  COUNTY  AND  SUPERIOR,  ( Continued). 
Miscellaneous. 
Set-off  pleadeil,  or  given  in  evidence  under  general  issue  on  notice,  wlien,  176. 
In  suits  for  slander,  and  a.  &  b.,  if  diimages  be  under  S4,  no  greater  costs  recovered,  177. 
In  ti'espass  q.  c.  f.,  defendant  may  in  certain  cases  plead  tender,  &c.,  in  bar,  &c.,  177. 
In  trespass,  a.  &  b.,  and  ejectment  against  several,  those  acquitted  shall  recover  costs,  177. 
Unless  the  judge  shall  certify,  &c.,  177. 

Court  may  order  parties  to  produce  books  or  papers,  as  in  equity,  177. 
If  plaintiff  fail,  to  be  nonsuited,  177. 
If  defendant  fail,  judgment  rendered  against  him,  177. 
Indorsee  may  sue  maker  and  indorser  jointly  or  severally,  177. 
And  their  executors  and  administrators,  177. 
On  joint  obligations  or  conti'acts,  one  or  more  may  be  sued,  178. 
Joint  obligations  to  survive  against  executors,  &c.,  178. 
Jtidgnient,  liow  entered  against  executors,  &c.,  and  sui-viving  obligors,  178. 
Several  actions  sued  on  joint  contracts,  to  be  consolidated,  178. 
One  attorney  fee  to  be  taxed  on  consolidation,  178. 
Judgment  bonds,  &c.,  void  as  to  the  power  to  enter  judgment,  178. 
Interest  shall  run  on  judgments  and  contracts,  except  penal  bonds,  178. 
To  be  distinguished  from  principal  by  jury,  178. 

Ascertaineil  by  clerk  in  judgments  final  by  default  on  bonds,  &c.,  178. 
Petitions  filed  in  vacation;  capias  to  issue  on  affidavit,  &c.,  179. 
Publication  for  non-resident  defendants  in  petitions,  when  and  how  made,  179. 
Decree  ^ro  confesso  against  non-residents,  to  bind  as  in  equity,  179. 
Accounts  in  petitions  audited  and  settled  by  order  of  court,  179. 
Clerk  to  i-eceive  same  fees  for  report,  as  master  in  equity,  179. 
Infants  may  sue  by  next  friend,  179. 

Bill  of  e-xceptions  may  be  tendered;  Judge  to  sign  and  seal  it,  179. 
Action  of  account  .allowed  against  executors,  &c.,  of  guardians,  160. 
Defendant  in  penal  suits  pleading  foi-mer  judgment,  plaintiff  may  reply  fraud,  180. 
Release  in  fraud  of  the  action,  void,  180. 
Defendant  in  penal  suit  pleading  falsely,  indictable,  180. 
PajTnent,  or  satisfaction  may  be  pleaded  in  suits  on  bond  and  judgments,  180. 
Also  pajmient  made  after  the  day,  &c.,  in  suits  on  bonds  conditioned  to  be  discharged  by  less  sum,  180. 
Penal  bonds  sued,  to  be  discharged  when  sum  due  and  costs  are  brought  into  court,  18L 
Judgment  to  stand  until  reversed,  181. 

In  appeal  and  recordari  from  justice's  judgment,  court  may  require  plaintiff  to  secure  costs,  161. 
Appeals  from  justice  to  be  tried  first  term  of  court,  181. 
In  case  of  default,  what  judgment  plaintiff  to  have,  181. 

Judgment  on  appeals  from  justices,  rendered  against  party  cast  and  snretics,  181. 
Plaintiff  appealing  from  a  justice  and  recovering  no  greater  sum,  not  to  recover  costs,  181, 
Appeal  from  county  to  superior  court  tried  de  twvo,  when,  181. 
Leap-year  day  counted  with  preceding  day,  as  one  day,  181. 
Execution  not  to  issue  on  judgment  after  a  year  and  a  day,  unless  revived,  181. 
Nonsuit  not  allowed  after  verdict,  182. 

Party  in  execution  not  to  be  discharged  on  habeas  corpus,  182. 

Death  of  a  party  between  verdict  and  judgment,  not  error  if  entered  in  two  terms,  182. 
Administrator,  d.  b.  n.  may  have  execution  on  judgment  got  by  former  administrator,  182. 
Accounts  taken  in  certain  suits  against  executors,  administrators,  guardians,  sheriffs,  &c.,  182. 
To  bo  stated  and  paid  for,  as  in  equity,  182. 

Cause  in  superior  court  removed  on  affidavit  to  adjoining  county,  182. 
Affidavit  in  ease  of  slave,  by  whom  made,  182. 
Reasons  for  removal  to  be  set  forth,  183. 
Cause  to  be  removed  twice  only,  183. 
Causes  removed  by  consent  to  any  convenient  county,  188. 
On  removal,  transcript,  depositions,  and  prosecutor's  bonds  to  be  sent,  163. 
Survey  ordered  in  case  of  disputed  boundaries;  by  whom  made,  188. 
Charges  of  surveys  taxed  as  costs,  163. 

Notices  in  proceedings  to  be  served  by  sheriff — how  served,  183. 
Return  of  service  by  sheriff,  evidence  of  service,  184. 


INDEX.  653 

COURTS,  COUNTY  AND  SUPERIOR,  ( Continued). 

MiSCELLAKEOUS. 

Wlien  executed,  returned  on  demand  to  the  party,  184. 

To  be  served  by  coroner,  when  sheriff  interested,  184. 

Penalty  for  failing  to  serve  notice,  or  malting  false  return  thereon,  184. 

Return  of  sheriff  on  scire  facias,  evidence  of  service,  184. 

Defendants  may  show  they  are  sureties  —  the  fact  to  be  found,  184. 

Property  of  principal  to  be  first  sold,  184. 

Costs,  judgment  for,  against  sureties  of  plaintiff  failing  in  suit,  184. 

After  judgment,  defendant  may  pay  the  money  to  clerk,  184. 

Clerk  to  pay  it  to  party  entitled,  185. 

Speedy  collection  of  judicial  sales,  by  motion,  185. 

Judge,  how  to  deliver  his  charge  to  the  jury,  185. 

Quakers  may  wear  hats  in  court,  185. 

County  court  to  procure  weights  and  stamps,  599. 

Legacies,  &c.,  recoverable  by  petition  in  superior  or  county  court,  3T1. 
COURTS-JIARTIAL.     See  Militia. 
COURTS  OF  EQUITY. 

Established  —  Powers  and  stj'le  of,  187. 
Rules  of, 

1.  Bill  may  be  filed  at  any  time  —  Penalty  of  subpoena,  187. 
"   Capias  when  to  issue  —  form  of  writ,  1S7. 

"  Not  to  issue  against  executor,  &c.,  unless  by  order  of  judge,  188. 

2.  Subpcena  and  copy  of  bill  to  be  served  ten  days  before  court,  188. 

3.  If  defendant  fail  to  appear  and  answer,  &c.,  bill  taken  as  confessed,  188. 
"   Further  time  allowed  for  cause,  188. 

"   In  all  cases,  time  for  pleading  may  be  enlarged,  188. 

4.  Publication  six  weeks  for  non-residents,  and  defendants  not  found,  188. 

"   If  defendant  fail  to  appear,  bill  taken  as  confessed  and  court  to  decree,  188. 
"   Provided,  (1).  Security  to  be  given  for  return  of  property,  iu  case  defendant  appears  and 
reverses  decree,  188. 

(2.)  In  case  of  satisfaction  decreed  out  of  sequestered  property,  188. 

(3.)  If  defendant  appear,  may  answer  on  terms,  189. 

(4.)  Within  what  time,  else  decree  confirmed,  189. 

(5.)  What  to  be  done  if  suit  has  been  removed  to  supreme  court,  189. 

(6.)  No  decree  against  non-resident,  unless  cause  of  suit  arose,  or  property  in  ques- 
tion be,  in  the  State,  189. 
6.  Cause  set  for  hearing  within  two  terms  after  replication,  189. 

6.  All  evidence  to  be  in  writing  —  Master  a  commissioner  to  take  depositions,  189. 

7.  Answers,  pleas,  &c.,  taken  by  a  judge,  or  by  a  justice  on  commission,  189. 

8.  Injunction,  sequestration,  and  ne  exeat  may  issue,  190. 

9.  Issues  of  f:iet,  when  tried  by  jury,  190. 

10.  Costs  decreed  at  discretion  of  court,  except,  &c.,  190. 

11.  Further  security  at  any  time  required  of  defendant,  190. 

12.  Decrees,  &c.,  executed  by  attachment,  or  otherwise,  190. 

13.  JIatter  arising  after  issue,  may  be  pleaded  jjuis  darrein,  190. 

14.  Venue  of  suits  in  equity,  190. 
Executions  to  issue  and  bind  as  at  law,  190. 
Costs  decreed  against  plaintiff  and  his  surety,  190. 

On  death  of  a  party,  his  representative  may  become  party,  190. 

Answer  of  deceased  to  be  answer  of  representative,  when,  191. 

Proceedings,  when  further  answer  is  required  of  representative,  191. 

Bill  taken  as  confessed,  if  he  will  not  answer  or  disclaim,  &c.,  191. 

Revived  in  certain  cases  by  defendant,  against  codefendant's  representatives,  191. 

Proceedings  in  such  cases,  191. 

Proceedings  enrolled;  when,  and  what  part  of  them,  191. 

Injunction  not  to  issue  for  greater  sum  than  sworn  to,  191. 

Nor  but  within  four  months  after  judgment,  unless,  &c.,  191. 

Jloncy  deposited  on  getting  injunction,  paid  over  on  security,  192. 

55* 


654  INDEX. 

COURTS  OF  EQUITY,  {Conlinued). 

Injunction  dissolved,  judgment  rendered  on  bond,  192. 
In  such  cases,  how  uncerlniii  damages  ascertained,  192. 
Against  judgment  of  the  State,  when  to  issue,  192. 

Infant  and  7ton  ccnnpos  defendants,  being  non-residents,  to  have  guardian,  192. 
Allowed  three  years  after  decree  to  appear  and  defend,  192. 
Causes,  when  removed  to  supreme  court,  192. 
Parol  evidence  not  received  in  supreme  court,  except,  &c.,  192. 
Further  provision  for  removing  equity  causes,  193. 

Bills  of  review  and  petitions  to  reliear  brought  in  live  years  —  Proviso  for  infants  and  others,  193. 
Clerk  and  master  may  convey  title  in  all  cases  of  sale  decreed,  193, 
Decree  in  certain  cases  to  be  a  conveyance  of  title,  193. 
To  be  regarded  as  a  deed  and  registered,  194. 
Copy  from  register's  office,  evidence,  194. 

Property  in  hands  of  executoi-s,  administrators,  and  trustees,  when  attachable  in  equity,  98. 
Proceedings  in  such  cases  —  see  Attachment,  98. 
Court  may  grant  administration  in  certain  cases,  284. 
Powers  of  courts  of  equity  over  orphans,  &o.,  323. 
May  decree  sale  to  prevent  injury  by  partition,  453. 
Also  when  land  is  required  for  public  purposes,  463. 
For  proceedings  in  such  sales  —  see  Partition. 
Proceedings  in  cases  of  sale  for  Partition  —  see  Partition. 
COURT,  SUPREME. 

Three  judges  of  the  supreme  court  appointed,  195. 

Terms,  in  June  and  December  to  be  held  in  Raleigh,  195. 

In  Morganton  one  term,  on  first  Monday  of  August,  195. 

To  sit  till  business  is  doue,  195. 

Name  and  style  of  the  court,  195. 

To  stand  adjourned  if  no  judge  attends  during  first  week,  195. 

Judges  to  take  and  subscribe  oaths  —  which  shall  be  filed  in  secretury's  office,  195. 

Form  of  path,  439. 

Two,  in  case  of  sickness,  &c.,  may  hold  court,  196. 

Shall  appoint  a  chief  justice,  196. 

Their  power  and  authority,  196. 

Jurisdiction  and  power  of  court,  196. 

Shall  render  judgment  on  view  of  the  record,  196. 

Execution  whence  issued,  and  where  returnable,  198. 

In  criminal  cases,  decision  certified  to  court  below,  196. 

How  that  court  shall  proceed,  196. 

Repeal  of  grants  and  letters  patent,  to  have  original  jurisdiction  of,  197. 

Decree  in  such  cases,  197. 

Clerks  appointed  for  four  years,  197. 

Shall  give  bond  and  take  oaths,  197. 

Offices  of  clerks,  where  kept,  197. 

Causes,  from  what  counties  caiTied  to  Morganton,  197. 

Provisionaiy  exception  in  criminal  cases,  197. 

Exception  also,  as  to  civil  cases  in  some  counties,  197. 

Causes  adjourned  from  Moi-ganton  to  Raleigh,  and  vice  versa,  197. 

Bills,  &c.,  to  be  enrolled,  and  such  other  proceedings  as  court  may  direct,  108. 

Clerk's  pay  for  such  service,  198. 

Rules  of  practice  for  superior  com-ts,  prescribed  by  supreme  court,  198. 

On  appeal  from  interlocutory  judgment,  &c.,  no  judgment  to  be  entered,  198. 

Opinion  with  instructions  to  be  certified  to  court  below,  198. 

Exhibits  in  equity  cases  proved  by  witnesses,  198. 

Witnesses,  binder  same  rules  as  to  pay,  &c.,  as  other  witnesses,  198. 

Opinion  of  judges  to  be  delivered  in  writing,  196. 

Certificate  of  decision,  nor  execution  to  issue  till  opinion  delivered  to  clerk,  198. 

Court  may  amend  any  proceedings  at  law,  199. 

What  amendment  may  allow  after  cause  set  for  hearing,  199. 


INDEX.  655 

COURT  SUPREME,  (,  Cbniinued). 

May  remand  ciiuse  for  amendment  below,  109. 

May  amend  by  making  parties,  199. 

May  allow  further  testimony  to  be  taken,  199. 

Within  what  time  petitions  to  rehear  may  be  filed,  199. 

Bills  of  review  aud  writs  of  error  may  be  brought  in  two  years,  199. 

Suits  may  be  dismissed  for  failure  to  prosecute,  199. 

Certificates  of  decisions  to  be  transmitted  to  court  below,  199. 

Clerk  failing  for  twenty  days  after  adjournment  to  transmit  certificates,  to  pay  SlOO,  200, 

Executions  for  costs  in  supreme  and  superior  courts  to  issue  from  those  courts,  respectively,  199. 

Ou  absence  of  attorney-general,  court  may  appoint,  &c.,  200, 

Reporter  of  decisions  annually  appointed,  200. 

To  report  such  cases  as  court  may  direct,  200, 

Reports  of  decisions,  how  distributed,  200. 

Marshal  of  court  at  Raleigh  appointed,  200. 

Sheriff  of  Burke  to  attend  court  at  Morgemton,  200. 

Pay  of  marshal  and  sheriff,  200. 

Judges  to  license  attorneys  at  law,  102. 

In  informations^  how  court  may  ascertain  the  facts,  138. 

Parol  evidence  not  received,  except,  &c.,  192. 

On  appeal  from  order  allowing  alimony,  what  the  court  may  examine,  254. 

Judges  may  transfer  law-books  from  Raleigh  to  Morganton,  487. 
CREEKS.     See  Rivers  and  Creeks. 
CRIMES  AND  PUNISHMENTS. 

Accessories  before  the  fact  punished  as  principals,  203. 
Crimes  punishaule  with  death. 

Murder  of  malice  prepense,  203. 

Felonious  burglary,  203. 

Wilfully  burning  a  dweUing-house,  203. 

Barn  having  grain  or  corn  therein,  203. 

Store  or  warehouse,  203. 

Buildings  erected  for  purpose  of  manufacturing,  203, 

Robbery  of  persons  in  or  near  the  highway,  203. 

Duelling,  when  one  party  is  killed,  203. 

Castration  with  malice,  203. 

Rape,  and  abuse  of  a  female  child  under  ten  years,  203.     v 

Crime  against  nature,  203. 

Malicious  burning  of  State  house  or  State  offices,  203. 

Court  house,  jail,  arsenal,  clerk's  or  register's  office,  203. 

Houses  of  incorporated  towns  or  companies  wherein  are  kept  .archives,  public  papers,  &c.,  203. 

Feloniously  entering  a  dwelling-house,  and  breaking  out  at  night,  203. 

Killing  a  slave  of  malice,  203. 

Stealing  slaves,  or  knowingly  conveying  away  stolen  slaves,  204, 

Aiding  slaves  to  escape  from  the  State,  204. 

Conveying  free  negroes  from  the  State  with  intent  to  sell,  204. 

Selling  free  negi'oes  within  the  State,  204. 

Property  in  slaves  stolen,  or  knowingly  conveyed  away,  how  laid,  204, 
Crimes  punishable  otiibrwise  than  by  death. 

Conveying  free  negroes  in  the  State  with  intent  to  sell  —  misdemeanor,  204. 

Malicious  maiming  —  misdemeanor;  punishment,  205. 

Bigamy  —  oft'ence  defined  —  misdemeanor;  punishment,  205. 

Circulating  seditious  publications  among  slaves  —  felony;  punishment,  205. 

Endeavoring  by  words  to  excite  insurrection  among  slaves  —  punishment,  206. 

Embezzlement  by  servants  of  master's  goods  —  misdemeanor;  punishment,  200. 

Breaking  prison,  a  misdemeanor,  206. 

Stealing  or  robbery  of  bank-notes  and  other  securities,  felony ;  punishment,  208. 

Stealing  growing  produce,  larceny,  206. 

Benefit  of  clergy  abolished,  207. 

No  one  pardoned  of  other  offences  by  conviction  and  punishment,  207. 

Manslaughter  — First  offence,  how  punished  —  second,  with  death,  207. 


650  INDEX. 

CRIMES  AND  rVNISHMENTS,  (dmlmuerl). 

Prior  conviction,  liow  sliown  on  scconJ  conviction,  207. 

Larceny  —  grand  and  petit  —  distinction  between  abolished,  207. 

Botli  punislied  as  petit  larceny  —  Proviso  in  aggravated  cases,  207. 

Felonies  not  punished  by  particular  statutes,  how  punishable,  207. 

Concealing  birth  of  child,  misdemeanor  —  punishment,  207.      - 

Forfeiture  for  suicide  abolished,  208. 

Burning  bridges,  or  houses  of  incorporated  towns  or  companies,  not  used  to  keep  archives,  &c., 

misdemeanor — punishment,  208. 
Maliciously  attempting  to  burn  bridges  and  certain  houses,  misdemeanor  —  punishment,  208. 
Stealing  or  obliterating  proceedings  or  records  of  courts,  misdemeanor,  208. 
In  indictment  for  stealing  or  obliterating,  &c.,  not  necessary  to  allege  ownership  or  value,  208. 
Stealing,  destroying,  or  concealing  wills  of  living  or  dead  persons,  misdemeanor,  208. 
Buying  and  selling  offices,  misdemeanor  —  punishment,  208. 
Bribery  of  jurors,  misdemeanor  —  punishment,  209. 

Escape  of  criminals  wilful  or  negligent  committed  to  officers,  misdemeanor,  209. 
What  necessary  for  the  State  to  prove,  209. 

Duty  of  attorney-general  and  soUcitors  in  case  of  such  escapes,  209. 
Breaking  up  or  staying  elections,  misdemeanor — punishment,  209. 
Public  commissioners  becoming  contractors,  misdemeanor,  210, 
Overseers  of  roads  neglecting  duty,  misdemeanor,  210. 
Removing  or  defacing  sign-posts  or  mile-marks,  misdemeanor,  536. 
Bridges  to  be  kept  up  by  mill  owners,  &c.  —  neglect,  misdemeanor,  210. 
Builder  of  toll-bridges  neglecting  to  repair,  &c.,  misdemeanor,  538. 
To  keep  unlawful  fences,  misdemeanor,  210. 
Trespass  on  pubUc  lands,  misdemeanor,  210. 
Trespasser  to  be  removed  by  sheriff,  210. 
Vagi-ants  to  be  recognized  and  indicted,  210. 
Peddling  without,  or  failing  to  show  license,  misdemeanor,  211. 
Fornication,  &c.,  misdemeanor,  211. 

Marrying  females  under  fifteen,  without  written  consent,  misdemeanor,  211. 
Maiming  without  malice,  misdemeanor  —  punishment,  211. 

Challenges  to  fight  —  sending,  accepting,  or  abetting,  misdemeanor  —  punishment,  211. 
Perjury,  misdemeanor  —  punishment,  211. 
Subornation  of,  punished  as  perjury,  212. 

Perjury,  and  stibornation  of,  in  capital  cases  —  punishment,  212. 
Persons  convicted  of,  rendered  infamous,  212. 

Accessories  to  felonies  before  the  fact,  when,  where,  and  how  tried,  212. 
Accessories  after  the  fact,  when,  where,  and  how  tried,  212,  213. 
Accessories  where  principal  is  not  attainted,  may  be  punished,  213. 
Eeceivers  of  stolen  goods,  &c.,  of  any  value,  misdemeanor  —  punishment,  213. 
Altering  mark,  &c.,  and  mismarking  beasts,  misdemeanor  —  punislimeut,  214. 
False  lights  on  the  sea-coast,  holding  out,  misdemeanor,  214. 
Forgery  —  punishment,  214. 

Counterfeiting  bank-notes,  checks,  public  or  corporation  securities,  punished  as  forgery,  214. 
Passing,  or  attempting  to  pass  counterfeit  notes,  securities,  &c.,  punished  as  forgery,  214. 
Forging,  issuing,  or  passing  certificates  of  stock,  punished  as  forgery,  215. 
Forged  judgments,  bonds,  &c.,  knowingly  to  sell,  punished  as  forgery,  215. 

Foreign  gold  or  silver  coins,  counterfeiting,  passing,  or  attempting  to  pass,  punished  as  forgery,  21B. 
Having  in  possession  instruments  for  counterfeiting  such  coin,  punislied  as  forgery,  215. 
Fraudulently  connecting  parts  of  several  bank-notes,  &c.,  forgery,  210. 
Cheating  by  false  pretences,  misdemeanor  —  punishment,  216. 
Fraudulent  entries  and  statements  by  public  treasurer — punishment,  216. 
Lotteries  forbidden,  misdemeanor- — punishment,  217. 
Sale  of  lottery  tickets,  misdemeanor  —  punishment,  217. 
Faro-tables  prohibited,  misdemeanor  —  punishment,  217. 
Gaming-tables  of  every  kind  prohibited,  misdemeanor,  217. 
Suffering  gaming-tables  to  be  on  premises —  punishment,  217. 
Gaming-tables  to  be  destroyed  by  sheriff,  &o.,  with  the  power  of  the  county,  217. 


INDEX.  657 

CRIMES  AND  PXJNISHMENTS,  (Continued). 

Betting,  or  playing  at  cards  in  inns  or  retail  houses,  misdemeanor  —  punishment,  217. 

Keepers  of  such  houses,  suffering  cards  played  on  premises,  guilty  of  misdemeanor,  218. 

Dloney  or  property  staked  may  be  seized,  218. 

Persons  opposing  seizure  guilty  of  misdemeanor,  to  forfeit  $1,000,  218. 

Billiard  and  backgammon  tables  excepted,  may  be  used,  218. 

Marriage  of  free  negroes  with  white  persons,  misdemeanor,  218. 

Enticing  away,  and  harboring  runaway  slaves,  misdemeanor  and  penalty,  218. 

Teaching  slaves  to  read  or  write,  use  of  figures  excepted,  misdemeanor,  218. 

Fire-arms  and  other  weapons  not  to  be  sold  or  giren  to  slaves,  219. 

Trading  with  slaves  on  Sund.iy  or  at  night,  misdemeanor,  219. 

Buying  or  receiving  from  slaves,  without  written  permission,  misdemeanor,  219. 

Unlawful  sales  to  slaves,  misdemeanor,  219. 

Certain  sales  to  slaves  of  liquor,  misdemeanor,  219. 

Presumptive  evidence  of  unlawful  trading  with  slaves,  220. 

Punishment  for  unlawful  trading  with  slaves,  220. 

Presumptive  assent  of  principal  to  unlawful  trading  by  his  agent,  220. 

Forgery  of  licenses  for  slaves  to  trade,  misdemeanor,  220. 

Penalty  additional  of  $100  for  trading  w^th  slaves,  221. 

Entertaining  slaves  and  free  negroes  on  vessels  at  certain  times,  misdemeanor,  221. 

Slaves  and  free  negroes  also  punished  therefor,  221. 

Retailing  spirituous  liquors  without  license,  misdemeanor,  221. 

Hunting  by  fire-light,  or  permitting  slaves,  &c.,  misdemeanor,  221. 

Accomplice  in  fire-hunting  giving  evidence,  discharged,  221. 

Wilful  injury  to  wells,  &c.,  of  water,  misdemeanor,  221. 

Voting  fraudulently  at  elections,  misdemeanor,  221. 

Maliciously  obstructing  or  injuring  railroads,  when  misdemeanor  —  when  felony,  222. 

Maliciously  injuring  plank-roads,  turnpikes,  or  canals,  misdemeanor — punishment,  222. 

Wilful  injuiy  to  railroads  and  other  improvements,  misdemeanor  —  punishment,  222. 

Tombstones,  monuments,  &c.,  removing  or  injuring,  misdemeanor,  223. 

Destroying,  defacing,  or  injuring  certain  houses,  otherwise  than  by  burning,  misdemeanor,  223 

Burning  or  injuring,  &c.,  churches,  uninhabited  and  out-houses,  misdemeanor,  223. 

Burnmg,  pulling  down,  or  removing  fences,  misdemeanor,  223. 

Stock,  wilfully  killing  or  injuring  while  running  at  large,  misdemeanor,  223. 

Maliciously  or  wantonly  killing  stock  in  certain  counties,  punished  as  larceny,  223. 

Ton  timber  floated  down  Eoanoke  river  to  be  marked,  and  mark  recorded,  &c.,  223. 

Altering  mark,  or  talcing  marked  timber,  witli  intent  to  steal,  larceny,  224. 

In  disputes  of  ownership,  mark  first  recorded  to  hold,  224. 

Sale  of  liquor,  traffic  and  exhibitions  near  places  of  worship  forbidden  —  when,  224. 

Sending  letters  of  menacing  demand  for  money,  misdemeanor,  224. 

Or  threatening  to  accuse  of  infamous  crimes,  to  extort  money,  224. 

Malicious  trespasses  and  injuries  to  real  estate,  misdemeanor,  224. 

White  women  not  to  be  branded  or  whipt,  225.   \.,/' 

Inspectors  of  elections  failing  to  act,  guilty  of  misdemeanor,  305. 

Negligent  omission  of  returning  officer  in  elections  of  governor  and  electors,  misdemeanor  and 

penalty,  225. 
Wilful  neglect  of  officers  in  such  cases,  felony  and  penalty,  225. 
Said  offences  tried  in  Wake:  not  to  be  pardoned,  225. 

Governor  not  to  pardon  negligent  or  wilful  omissions  of  returning  officers  in  certain  elections,  225. 
Returning  officers  in  senate  elections  failing  to  compare  polls,  misdemeanor,  307. 
White  person  playing  at  games  with  slave  or  free  negro,  guilty  of  misdemeanor,  225. 
Contempt  of  court,  what  shall  be,  226. 

When  punished  or  attached  for,  particulars  to  be  specified,  226. 

Constables  failing  to  execute  process,  or  making  false  returns,  guilty  of  misdemeanor,  226. 
Or  acting  without  authority,  226. 

Officers  failing  to  discharge  their  duties,  guilty  of  misdemeanor,  226. 
Misdemeanors  by  statute,  punished  as  at  common  law,  unless  otherwise  directed,  226. 
Failure  to  levy,  or  collect  and  pay  tax  for  indigent  insane,  misdemcauor,  90. 
Sheriff  releasing  defendant  without  bail,  indictable,  106. 


658  INDEX. 

CRIMES  AND  PUXTSHSIENTS,  ( Contimied). 

Persons  firing  woods,  except,  &c.,  guilty  of  misilc 

Giving  certificate  of  healthy  stock  by  justice,  without  afFidavit,  misdemeanor,  117. 

Circulation  of  notes,  due-bills,  Sec,  under  S3,  misdemeanor,  238. 

Issuing  false  certificate  of  specie  paid  in  bank,  misdemeanor,  238. 

Foi-cible  entry,  indictable,  296. 

Failure  of  sherift"  to  notify  governor  of  vacancy  before  session  of  assembly,  misdemeanor,  307. 

Falsely  acting  as  legal  inspector,  misdemeanor,  353. 

Establishing  railroads,  &c.,  ■without  permission,  misdemeanor,  360. 

Vessel  coming  into  port  against  quarantine  law,  master  and  pilot  indictable,  492. 

Register  violating  his  duties,  guilty  of  misdemeanor,  498. 

Listers  of  taxables  refusing  to  take  oath,  guilty  of  misdemeanor,  517. 

List-takers  or  assessors  refusing  to  act,  guilty  of  misdemeanor,  518. 

Obstructing  boats  by  felling  trees,  &c.,  misdemeanor,  531. 

White  persons  working  in  certain  swamps  with  slaves  without  certificate,  &c.,  guilty  of  misde- 
meanor, 567. 

Forgery  of  certificate  punishable  with  pillory,  &c.,  568. 

Masters  allowing  slaves  to  go  at  large  as  freemen,  guilty  of  misdemeanor,  570. 

Allowing  slaves  of  others  to  meet  for  dancing  unless,  &o.,  misdemeanor,  670. 

Free  persons  conspiring  with  slaves —  punisliment,  572. 

For  crimes  and  punishments  of  slaves  and  free  negroes.    See  Slaves  and  Free  Neyroes. 

Millers  keeping  false  measures  indictable,  427. 

Finder  concealing  stranded  goods,  guilty  of  larceny,  617. 

Embezzlers  and  receivers  of  such  goods  punished  as  for  larceny,  618. 

Defendant  in  penal  suit  pleading  foi-mer  judgment,  obtained  by  fraud,  guilty  of  misdemeanor,  180. 

Offences  in  respect  to  oysters  and  fish.    See  Oysters  and  other  Fish. 
CRIMINAL  PROCEEDINGS. 

Rights  of  accused  in  criminal  prosecutions,  8. 

Mode  of  prosecution,  8. 

Jury  trial  in  criminal  cases,  8. 

Bail,  fine,  and  punishment  to  be  reasonable,  8. 

Duty  of  magistrates  in  committing  criminals,  228. 

Examination  of  criminal  and  witnesses  before  magistrate,  -when  evidence,  228. 

Duty  of  sheriffs  and  others  in  arresting  criminal;  all  to  aid  officer,  228. 

Persous  to  be  imprisoned  in  the  common  jail,  229. 

Sherifi",  in  jail  of  adjoining  county,  229. 

Governor  may  take  means  to  arrest  fugitives  charged  with  capital  crimes,  229. 

Fugitives  from  other  States  charged  with  high  crimes,  to  be  committed,  229. 

No  person  to  be  arrested  on  a  presentment,  229. 

None  to  be  put  on  trial  but  on  indictment  found,  229. 

Names  of  witnesses,  and  grand-juiy  informers,  to  be  indorsed  on  presentment,  229. 

Indictment  for  misdemeanor,  except,  &c.,  to  be  commenced  in  two  years,  if  oflender  he  known,  229. 

Proviso,  where  indictment  is  defective,  230. 

Criminal  process  to  issue,  and  be  returnable  at  any  time,  230. 

Pwjceedings  to  be  as  heretofore,  unless  altered,  230. 

Sheriff  to  indorse  on  criminal  process  and  subpoenas,  d.ay  of  receipt  and  execution,  280. 

Bail  to  be  taken  by  sheriff,  when  offence  bailable,  230. 

Sheriff  shall  not  become  bail  in  such  cases,  230. 

Persons  convicted  of  misdemeanor,  %llowed  bail  pending  appeal,  230. 

Accused  entitled  to  counsel,  230. 

Indictment  not  quashed,  or  judgment  stayed,  for  formal  objections,  230. 

Proceedings  of  court,  how  and  what  part,  to  be  set  forth  in  indictments,  230. 

What  to  be  set  forth  in  indictment  for  perjury,  231. 

What,  for  subornation  of  perjury,  231. 

In  indictment  for  second  offence,  how  first  conviction  stated,  231. 

How  ownership  stated  of  property  held  in  common,  231. 

Certain  defects  in  indictment  not  to  vitiate,  231. 

Intent  to  defraud,  what  statement  and  proof  thereof,  sufficient,  232. 
Party  whose  name  is  forged,  a  oompetent  witness,  232. 


INDEX.  659 

CRIMINAL  PROCEEDINGS,  (Continued). 

Counts  joined  for  trading  with  slave,  receiving  stolen  goods,  and  larcenj-,  232. 
Crimes  committed  on  waters  dividing  counties,  where  tried,  232. 

Improper  venue  to  be  pleaded  in  abatement,  232. 

On  issue  joined,  what  judgment  rendered  in  misdemeanors  and  felonies,  233. 

In  indictments  for  libel,  defendant  may  show  the  truth,  233. 

Assault  and  death  in  different  counties,  trial  where  assault,  233. 

Assault  in  State  and  death  out  of  it,  trial  in  this  State,  233. 

Plea  entered  for  defendant  standing  mute,  233. 

Special  feniVe  issued  by  judge  in  capital  cases,  233. 

Penalty  on  sheriff  for  not  executing  it;  on  jurors  not  attending,  233. 

Challenges  peremptory  allowed  defendant,  234. 

Twenty-three  in  capital,  and  four  in  other  cases,  234. 

Challenges  by  State,  234. 

Four  allowed  in  capital,  and  two  in  other  cases,  234. 

Goods  restored  on  conviction  of  robbery  and  larceny,  234. 

New  trials  vaay  be  granted  to  defendants,  234. 

A  day  for  trial  of  crimes  to  be  fixed  by  courts,  234. 

State's  day,  notice  of,  to  be  given  by  clerk,  234. 

Witnesses  not  to  attend  till  State's  day,  234. 

Paid  as  in  civil  cases,  234. 

Prosecutor,  in  certain  cases  ordered  to  pay  costs,  235. 

Recognizances  remitted  or  lessened  at  any  time,  by  a  judge,  235. 

Clerks  to  refund  remitted  forfeitures  paid  into  office,  235. 

County  trustee,  when  paid  to  him,  235. 

Fines  remitted  or  lessened  by  county  court,  when,  235. 

Recogniz.ances  forfeited,  remitted,  or  lessened  by  county  court  before  judgment,  235. 

Executions  for  forfeitures,  &o.,  not  to  issue  till  after  sci.fa.,  235. 

Joint  sci.fa,  to  issue  on  forfeited  recognizances,  235. 

How  to  be  executed,  236. 

Costs  to  be  paid  by  defendant  in  criminal  cases,  when,  236. 

Penalties  not  given  specially,  may  be  recovered  by  any  one,  236. 

"When  recovered  in  name  of  the  State,  236. 

Prosecuting  officer  may  dkect  post-mortem  examination,  236. 

Participators  in  unlawful  games,  to  testify  of  the  gaming,  236. 

Not  to  be  prosecuted  therefor,  after  testifying,  236. 

Court  may  continue  longer  than  a  week  in  capital  cases,  159. 

In  criminal  cases,  decision  of  supreme  court  to  be  certified  to  court  below,  196. 

How  that  court  to  proceed,  196. 

Benefit  of  clergy  abolished,  207. 

No  one  to  be  pardoned  of  other  ofTences,  by  conviction  and  punishment,  207. 

Property  in  slaves  stolen,  or  knowingly  conveyed  away,  how  laid,  204. 

In  indictment  for  stealmg  or  obliterating  records,  &c.,  not  necessary  to  allege  ownership  or 
value,  203. 

White  women  not  to  be  branded  or  whipt,  225. 

Proceedings  against  insane,  imprisoned  for  crime,  330. 

May  be  tried  on  becoming  sane,  330. 

Trial  of  slaves  to  be  conducted  as  of  freemen,  571. 

Owner  to  have  ten  days'  notice  of  trial,  and  liable  for  costs,  577. 

When  owner  cannot  be  notified,  counsel  appointed,  578. 

Insolvent  free  person  convicted  of  capital  offence  may  appeal  without  security,  75. 
BOPS. 

If  ungathercd  at  death,  &c.,  shall  go  to  executor,  &c.,  and  not  to  devisee  or  widow,  293. 

Rent  crops  exempt  from  execution  except  for  taxes,  3B8. 

Executions  not  to  be  levied  on  crops  till  matured,  276. 
ULLINGS.    See  Inspections,  353. 
URIOSITIES. 

Tax  on,  514. 

Exhibition  of,  in  five  miles  of  Chapel  Hill  without  license,  misdemeanor,  596. 

Not  to  be  exhibited  in  half  mile  of  religious  assemblies,  except,  Sec,  500. 


660  INDEX. 

CURRENCY. 

Of  United  States  to  be  the  currency  of  the  State,  287. 

Public  accounts,  &c.,  to  be  kept  therein,  237. 

Banks  not  to  draw  checks  payable  otherwise  than  in  specie,  237. 

Not  to  issue  bills,  or  certificates  of  deposit  for  less  than  three  dollars,  237. 

Corporations  not  to  issue  such  certificates,  nor  any  kind,  for  circulation  — penalty,  237. 

Issue  of  bills,  notes,  and  any  circulation,  unless  expressly  allowed,  a  misdemeanor,  237. 

Circulation  of  such  notes,  due  bills,  &c.,  a  misdemeanor,  238. 

Treasurer  not  to  receive  notes  of  banks  issuing  bills,  c&c,  less  than  three  dollars,  238. 

Specie  required  by  charier  to  be  honafuh  paid  in,  before  banking,  238. 

Certificate  of  pnyment  to  be  deposited  with  the  governor,  238. 

On  pain  of  misdemeanor,  and  penalty,  238. 

Issuing  false  certificate  of  specie  paid  in,  misdemeanor,  238. 

Corporations  and  companies  created  bj-  letters  patent,  forbidden  to  bank,  137. 
CURSING  AND  S\VE.\RING.     See  Vice  and  Immorality,  578. 
DAM.     See  Drainintj  and  Damminij  Low  Laruh. 
DAMAGES. 

For  injuries  causing  death,  how  assessed,  65. 

When  assessed  in  actions  of  ejectment,  167. 

On  dissolution  of  injunction,  how  uncertain  damages  ascertained,  192. 

Damages  for  stock  killed  on  railroad,  how  recovered,  117. 

For  sheep  injured  by  dogs,  117. 

Damages  at  the  rate  of  12  per  cent,  against  clerks  and  otliers  for  money  detained,  446. 

In  waste,  plaintiff  shall  recover  treble  damages  and  place  wasted,  598. 

By  stock  where  fence  sufficient,  how  recovered,  294. 

To  stock  by  persons  not  having  legal  fence,  how  recovered,  295. 

Attorney  guilty  of  fr.aud,  to  pay  double  damages,  102. 

Damages  for  lands  and  materials  condemned  for  railroads,  &c.,  how  assessed.     See  Internal  Im- 
provement. 
DEBTORS.     See  Insolvent  Debtors. 

Debtor  named  executor  not  discharged,  288. 

Persons  removing  debtors  to  delay,  &c.,  creditors,  liable  for  their  debts,  301. 

Lands  of  deceased  debtors  sold  to  pay  debts.    See  Executors  and  Administrators,  290. 
DEBTS  DUE  THE  STATE. 

To  have  priority,  595, 

Recovered  on  motion.     See  Revemie  —  Treasurer. 
DECREE. 

Executed  by  attachment,  execution,  or  otherwise,  190. 

Presumed  to  be  satisfied  after  ten  years,  375. 

In  certain  cases  to  convey  estates,  193. 

In  such  cases  to  be  registered  as  deeds,  194. 
DEEDS  AND  CONVEYANCES. 

Deeds  proved  and  registered  in  county  where  land  lies,  good  without  livery,  239. 

Probate  of  deeds,  powers  of  attorney,  &c.,  before  whom  made,  239. 

When  grantor  or  subscribing  witness  out  of  the  State,  proved  before  a  commissioner  appointed  by 
county  court,  240. 

Commission  to  issue  under  seal  of  court,  240. 

Probate,  and  privy  examination  o{feme  cmert,to  be  certified,  240. 

Deed,  &c.,  to  be  registered  on  return  of  certificate,  240. 

Probate  of  deeds,  &o.,  in  United  States,  of  yemc  coverts  and]  others,  taken  before  a  judge  and 
certified,  240. 

Made  in  foreign  countries,  how  jirovcd  and  registered,  241. 

Further  provisions  for  probate  of  such  deeds  before  ambassadors,  &c.,  241. 

Of  husband  and  wife,  how  proved  —  wife  to  be  privily  examined,  242. 

When  wife  is  sick,  or  resident  in  another  county  or  country,  242. 

Form  of  commission  to  take  her  examination,  242. 

Conveyance  under  power  of  attorney  from  husband  and  wife,  valid,  243. 

Such  powers  proved  and  registered  as  deeds,  248. 


INDEX.  661 

DEEDS  AND  CONVEYANCES,  ( Conti7iued). 

Another  mode  of  examination,  when  husband  and  wife  reside  in  foreign  parts,  213. 

How  proved  in  and  out  of  the  State,  243,  244. 

Subscribing  witness  dead,  how  deeds,  &c.,  proved,  244. 

Copies  of  registered  deeds  evidence,  unless  original  requu-ed  by  rule,  244. 

Gifts  of  slaves  to  be  proved  and  registered,  244. 

Also  deeds  of  gift,  244. 

Sales  of  slaves  in  writing,  likewise,  244. 

To  be  registered  where  purchaser  resides,  unless  vendor  retains  possession,  244. 

Estates  in  slaves  Mmitable  bj  deed,  ns  by  will,  245. 

Deeds  of  mortgage  and  trast  valid  against  creditors,  &c.,  only  from  registration,  245. 

Where  registered,  if  they  convey  personal  estate,  245. 

Begister  to  indorse  day  of  receipt  on  mortgages,  &o.,  245. 

To  register  them  in  the  order  of  delivery,  — penalty,  245. 

Man-iage  settlements  to  be  registered,  else  void  as  to  creditors,  245.    v- 

When  valid  against  creditors,  245. 

Deficiency  in  property  settled,  how  made  up,  246. 

Contrasts  to  sell  land,  and  leases  required  to  be  in  writing,  to  be  registered,  246. 

Infant  trustees  how  to  convey,  246. 

Errors  in  registration  corrected  on  petition,  246. 

Appeal  allowed  from  the  judgment,  246. 

Deeds  for  land  registered  in  wrong  county  before  1830,  or  certified  copies,  may  be  registered  in 
proper  county,  —  when,  246. 

Deeds,  how  made  when  sheriif  after  sale  goes  out  of  office,  dies,  or  removes,  246. 

Witnesses  to  deeds  may  be  summoned  to  prove  them,  247. 

Further  time  allowed  for  probate  and  registration,  247. 

Conveyances  from  corporations  by  deed,  how  made,  137. 

Decrees  of  courts  of  equity  may  operate  as  conveyances,  193. 

Deeds  registered  and  lost  and  registry  destroyed,  presumed  to  have  been  in  due  form,  274. 

Lands  contracted  to  be  sold  by  deceased,  to  be  conveyed  by  executor,  &c.,  283. 

Eegister  to  call  on  clerks  for  deeds,  &c.,  in  twenty  days  after  court,  498. 

Deeds,  &c.,  other  than  mortgages,  &c.,  to  be  registered  in  one  month  after  delivery  —  penalty,  498. 

Original  deeds,  &c.,  to  be  kept  by  registers  in  alphabetical  files,  and  delivered,  &c.,  498. 
Alienation  by  widow  of  dower  land,  to  convey  her  right  only,  603. 

Officers  to  prepare  deeds  for  property  sold,  280. 
Land  sold  for  taxes,  to  be  conveyed  by  sheriff',  523. 
Mode  of  proceeding  toobtain  title  — see  Jtevemie,  523. 
DEEDS  IN  TRUST.     See  Mortgage.,  and  Deeds  m  Trust. 
DEER.     See  Burning  Woods  and  Iluniing. 
DELEGATES,  present  at  the  Mecklenburg  declaration  of  independence,  3. 

To  State  congress  in  1776,  6. 
DEMURRER. 

On  demurrer  formal  defects  disregarded,  unless  specially  expressed,  71. 
Time  allowed  to  argue  demurrer,  169. 
DEPOSITIONS. 

Rules  for  taking  depositions,  173. 
To  be  passed  on  by  clerk,  173. 
Rule  as  to  depositions  in  cases  of  divorce,  252. 
How  taken  in  contested  election  of  governor,  314. 
In  trials  before  justice,  when  allowed,  364. 

Not  allowed  on  application  of  infamous  person  to  be  restored,  832. 
Of  what  persons  living  in  the  State,  may  be  read,  173. 
DEPOSITS  OF  PUBLIC  FUNDS.     See  Treasurer. 
DEPOTS.     See  Internal  Improvements. 

Quantity  of  land  condemned  for,  359. 
DEPUTIES. 

Of  clerks  of  county  and  superior  courts,  when  to  act  as  clerks,  122. 
To  be  qualified  as  officers,  122. 

56 


662  INDEX. 

DEPUTIES,  ( Continued).  ■ 

Sworn  deputy  may  administer  oaths  whenever  principal  may,  444. 
DESCENTS. 

KULES   OF. 

1.  Lineal  descent,  248. 

2.  Females  to  inherit  equally  with  males,  and  younger  with  older  children,  248. 

"  Children  advanced  in  real  or  personal  estate,  to  account  for  advancements,  248. 

3.  Lineal  descendants  to  represent  their  ancestor,  249. 

4.  Collateral  descent  of  inheritance,  when  derived  from  ancestor,  249. 

5.  When  not  so  derived,  or  ancestor's  blood  extinct,  249. 

6.  Half  blood  to  inherit  equally  with  whole  blood,  249. 
"  Parents  when  to  inherit  from  children,  249. 

7.  Kone  to  inherit  unless  alive,  or  bom  in  ten  months  after  ancestor's  death,  249. 

8.  When  widow  shall  take  as  heir,  249.     ./ 

9.  Alien  heirs  not  to  prevent  citizen  relations  from  inheriting,  249. 

10.  Illegitimate  children  to  inherit  from  their  mother,  249. 

11.  And  from  each  other,  250. 

"    Mother  to  be  heir  of  illegitimate  child  dying  without  issue,  250.    V' 

12.  Estates  for  life  not  devised,  to  descend  as  inheritances,  250. 

13.  Seizin  defined,  250. 

DETAINER.     See  Forcible  Entry  and  Detainer. 
DEVASTAVIT.    See  Executors  and  Administrators,  290. 
DEVISEES. 

Specific  devisees  whose  lands  are  sold  to  pay  debts,  entitled  to  contribution,  292. 

Devisee  not  entitled  to  ungathered  crops,  293. 

Sales  by  devisees  and  heirs,  within  what  time  void  as  to  creditors,  292. 

Devisee  or  collateral  heir,  failing  to  pay  tax,  &o.,  to  be  sued,  508. 
DIGNITY  OF  DEBTS. 

Prescribed  —  see  Executors  and  Administrators,  286. 

Debts  of  State  to  have  priority,  595. 

Surety  paying  debt  of  deceased  principal  to  have  like  priority  as  the  creditor,  566. 
DISTILLERS  OF  TURPENTINE,  tax  on,  611. 
DISTRESS  FOR  TAXES.     See  Revenue,  521. 

DISTRIBUTIVE  SHARES  OF  INTESTATES'  ESTATES.    See  Legacies,  #£. 
DISTRICTS,  CAPTAINS.     See  Constables;  County  Boundaries ;  Militia. 
DISTRICT  OF  COLUMBIA.    See  Statutes,  cfc. 

"  State  "  and  "  United  States  "  shall  embrace  the  District  of  Columbia,  581. 
DITCHES.     See  Draining  and  Damming,  tf-c. ;  Boads,  Ferries,  <^-c. 

Owners  of  mills  and  ditches  on  and  across  roads,  to  keep  up  bridges,  537. 
DIVIDENDS.    See  (Corporations. 

Tax  on  —  see  Revenue,  609. 
DIVORCE  AND  ALIMONY. 

Power  of  General  Assembly  over  the  subject,  23. 

Courts  of  law  and  equity  to  have  jurisdiction,  251. 

Divorce,  or  aUmony,  when  granted,  261. 

Divorce  from  bed  and  board  and  alimony,  when  granted,  251. 

Alimony  granted  to  spendthrift's  wife,  261. 

Proceedings  to  obtain  divorce,  or  alimony,  261. 

Affidavit  of  the  facts,  and  security  for  costs,  251, 

Petition,  how  served,  252. 

Material  facts  submitted  to  a  jury,  252. 

Cause  of  complaint  nmst  have  been  six  mouths,  and  residence  three  years,  252. 

Unless  husband  is  removmg  his  property  —  proceedings  iu  such  case,  252. 

Rules  as  to  depositions  and  costs,  252. 

Bars  to  divorces  on  account  of  adultery,  252. 

Decree  when  made,  and  what  decreed,  253. 

Innocent  party  may  marry  again,  253. 


INDEX.  663 

DIVORCE  AND  ALIMONY,  (Cmllnued). 

Offending  party  may  not,  during  the  life  of  tlie  other,  25'1. 
Children  not  to  become  Illegitimate,  253. 

Alimony,  how  secured  and  enforced,  253. 

Wife  divorced  from  bed  and  board,  to  have  property  thereafter  acquired,  253. 

May  sue  and  be  sued  alone,  253. 

What  privileges  may  be  decreed  to  a  ivife  obtaining  alimony,  253. 

Alimony  allowed  pending  suit,  254. 

Appeal  allowed  on  grant  of  alimony  in  such  case,  254. 

What  supreme  court  may  examine,  254. 

Appeal  OQ  final  decree  of  divorce  and  alimony,  254. 

Suits  for  divorce,  &c.,  may  be  removed  to  supreme  court,  254. 
DOGS.     See  Calth  and  other  Stoch ;  Mad  Dor/S. 

Tax  on,  may  be  laid  by  towns,  590. 
DOOR-KEEPEK.    See  General  Assembly. 

Of  council  of  State  —  His  pay,  544. 
DOWER.     See  ]Vidmcs. 

Widows,  in  what  cases  entitled  to  dower,  601. 

Proceedings  to  obtain  dower,  601. 

Fraudulent  conveyance  not  to  defeat,  601. 

Allowed  in  rights  of  redemption  and  trust  estates,  602. 

Dower,  and  land  in  heu,  not  subject  to  husband's  debts,  602. 

To  include  dwelling-house,  unless,  &c.,  601. 

Detained  of  dower  entitled  to  damages,  605. 

Wife  eloping  with  adulterer,  barred  of  dower,  603. 

Alienation  by  widow  of  dower  land  to  convey  her  right  only,  603. 

In  sales  for  partition,  court  may  decree  sale  of  dower  interest,  453. 
DKAGNETS.     See  Oysters  and  Other  Fish. 
DRAINING  AND  DAMfflNG  LOW  LANDS. 

Mode  of  proceeding,  255. 

Court  to  appoint  seven  commissioners,  265. 

Their  duty  —  To  report  to  court,  265. 

On  payment  of  damages  and  costs,  easement  to  vest  in  fee,  256, 

No  canal  or  dam  made  through  yard  or  curtilage,  256. 

Or  to  injure  mills,  or  create  nuisance  by  stagnant  water,  &c.,  255. 

Fences  or  paths  across  canal  or  dam,  when  made  by  proprietor,  256. 

Earth  for  dam,  how  taken,  256. 

Proprietor  of  land  may  adjoin  his  own  dam,  when,  256. 

Commissioners  to  designate  width  of  land  for  use  of  canal  or  dam,  256. 

Width  for  dam  not  to  exceed  five  times  its  base,  256. 

Earth  excavated  for  canal  to  be  removed  or  levelled,  266. 

Proprietor  of  land  not  to  open  drain  within  thirty  feet  of  canal,  258. 

Mode  of  proceeding  to  drain  into  a  canal,  256. 

Canal  not  to  be  cut  into,  if  its  value  be  endangered  thereby,  257. 

Unless  the  danger  may  be  avoided  by  imposing  duties  or  labor,  257. 

No  decree  final  for  cutting  made,  until  the  work  is  done  and  effect  seen,  257. 

Labor  for  repairing  canals  to  be  assessed  and  apportioned  by  commissioners,  257. 

Report  when  confirmed  to  stand  as  a  judgment  against  the  parties,  257. 

Mode  of  proceeding  to  enforce  repairs  of  canals,  257. 

Persons  failing  to  work,  how  recovered  against,  257. 

Assignees  and  others  bound  to  repair  as  original  owners,  257. 

All  interested,  to  contribute  to  repair  dams,  &c.,  267. 

Mode  of  proceeding,  258. 

Pay  of  commissioners  to  be  taxed  among  costs,  258. 

Costs  of  appeal  to  be  paid  as  court  shall  direct,  258. 

Owners  of  ditches  across  roads  to  make  and  keep  up  bridges,  537. 

Penalty  for  neglect,  638. 
DRAW  IN  BRIDGES.     See  RomIs,  Ferries,  and  Bridges. 


664  INDEX. 

DRUGS,  of  non-residents,  sold  by  agent. 

Tax  on.     See  Bevenue,  511. 
DUE  BILLS  AND  CHECKS.    See  Currency;  Banks. 
DUELLING. 

Challenges  to  fight,  sending,  accepting,  or  abetting,  misdemeanor,  211. 

Killing  in  duel  deemed  murder,  203. 
DUMB,    See  Asylums. 
DUNKERS.    See  Oaths. 

DWELLING-HOUSE.    See  Crimes  and Fwiishments. 
EJECTMENT. 

Plaintitf  making  affidavit  that  defendant  entered  as  tenant,  on  what  terms  plea  allowed,  166. 

Oil  trial,  damages  may  be  assessed  for  waste  and  occupation,  167. 

Flea  puis  darrein  of  entry  by  plaintiff,  not  received  without  affidavit  and  payment  of  costs,  167. 

After  such  plea,  damages  assessed  in  certain  cases  for  use  and  occupation,  167. 

In  ejectment  against  several,  those  acquitted  shall  recover  costs,  unless,  &c.,  177. 

On  death  of  defendant  in  ejectment,  how  service  made  on  heirs,  &c.,  65. 
ELECTIONS. 

Breaking  up  or  staying,  misdemeanor,  209. 

Voting  fraudulently,  misdemeanor,  221. 

Negligent  omission  of  returning  officers  in  elections  of  governor  and  electors,  misdemeanor  and 
penalty,  225. 

Wilful  neglect  of  officers  in  such  cases,  felony  and  penalty,  225. 

Justice  being  a  candidate  not  to  vote,  &c.,  in  election,  361. 

Voting  more  than  once  in  elections  for  member  of  congress,  penalty  for,  396. 

Persons  coming  of  age  after  first  of  April  may  pay  tax  and  vote,  515. 

Process  not  to  be  executed  on  days  of  certain  elections,  168. 

Incorporated  towns  may  elect  commissioners  and  other  officers,  687. 

For  election  of  officers  by  towns  —  see  Toums. 

For  election  of  constables  —  see  Constables. 

For  election  of  clerks  of  county  and  superior  courts  —  see  Clerks  of  County  and  Superior  Churtt. 

For  election  of  governor  —  see  Governor  and  Council. 

For  election  of  members  of  assembly  —  see  General  Assembly. 

For  election  of  members  of  congi-ess — see  Members  of  Congress. 

For  election  of  sheritis  —  see  Sheriff. 
ELECTORS  OF  PRESIDENT  AND  VICE-PRESIDENT. 

State  divided  into  ten  electoral  districts,  258. 

Persons  qualified  to  vote  for  electors:  —  time  and  place  of  elections,  259. 

Certificate  of  poll  and  return,  by  whom  made,  259. 

Penalty  of  $500  for  failing  to  make  return,  259. 

Governor  to  proclaim  electors,  and  warn  them  to  attend  at  Raleigh,  260. 

To  deliver  them  a  list  of  votes  and  lay  same  before  assembly,  260. 

When  and  where  electors  shall  meet,  260. 

Penalty  on  electors  failing  to  attend,  260. 

On  sheriffs  refusing  to  hold  polls,  or  for  false  returns,  261. 

Compensation  and  privileges  of  electors,  261. 

May  supply  vacancies  in  their  bodies,  261. 

Pay  of  sheriffs  for  holding  election,  261. 

On  vacancy  of  offices  of  president  and  vice  president,  governor  to  order  election,  261. 
EMANCIPATION  OF  SLAVES.     See  Slaves  and  Free  Negroes. 
EMBEZZLEMENT. 

By  servants  of  master's  goods,  punishment,  206. 

Selling,  buying,  or  embezzling  public  arms,  penalty  for,  482. 

Of  wrecked  goods,  deemed  larceny,  618. 
EMBLEMENTS. 

Widow  dying  entitled  to  emblements,  603. 

Crops  ungathered  at  decease  go  to  e.xecutor,  and  not  to  devisee  or  widow,  293. 
ENGINEERING,  BUREAU  OF.    See  Internal  Improvements. 

Internal  improvement  companies  to  furnish  bureau  with  maps,  &o.,  of  improvements,  359. 


INDEX.  666 

ENROLMENT. 

No  proceedings  in  courts  of  equity  to  be  enrolled,  unless  ordered,  191. 

In  supreme  court  all  pleadings  and  decrees  in  equity  cases  to  be  enrolled,  198. 

No  other  part  of  the  proceedings,  unless  ordered  by  court,  198. 
ENTRIES  AND  GRANTS. 

What  lands  subject  to  entry,  262. 

Land  covered  by  navigable  waters  may  be  entered,  when,  262. 

Regulation  of  the  line  on  deep  water,  262. 

Price  of  such  land,  262. 

Owners  of  wharves  on  such  land  may  enter  it,  262. 

Lands  covered  by  lake  water  not  to  be  entered,  262. 

Nor  marsh  or  swamp  lands  of  2,000  acres  in  one  body,  &c.,  262. 

Such  lands  in  bodies  of  60  acres  entered,  in  certain  cases,  262. 

Entries  and  grants  of  land  not  authorized,  void,  263. 

Entry-takers  and  surveyors  appointed,  263. 

Where  a  vacancy,  clerk  of  county  court  to  act  as  entry-taker,  263. 

Bonds  of  surveyors  and  entry-takers,  263. 

Entry-takers  to  keep  office  at  court  house,  263. 

Surveyors  may  appoint  deputies,  263. 

Price  of  entered  lands,  263. 

Entry  money,  when  paid,  263. 

Time  of  payment  on  certain  entries  extended,  proviso,  263. 

On  failure  to  pay  the  price,  next  enterer  entitled,  264. 

In  case  of  lapse,  same  person  not  to  reenter  within  a  year,  264. 

Entries  how  made  ;  warr.ants  when  issued,  264. 

Surveys,  how  made  and  returned,  264. 

Chain  carriers,  appointed  and  sworn,  264. 

Special  surveyor,  when  appointed,  265. 

Surveys  to  be  according  to  priority  of  entry,  265. 

Warrant  of  survey  lost,  duplicate  may  issue,  265. 

On  death  of  entry-taker,  successor  to  issue  warrant,  265. 

Entry-takers,  how  to  make  entries  for  themselves,  265. 

Surveyors,  how  to  have  surveys  made  for  themselves,  265. 

Entry-takers  to  make  annual  returns  to  secretary  under  penalty,  265. 

Treasurer  to  receive  entry-money,  266. 

Grants,  on  what  certificates  issued,  266. 

How  authenticated:  —  to  be  registered,  266. 

Copies  from  secretary's  office  may  be  registered,  266. 

How  to  issue  on  death  of  enterer,  266. 

Seal  to  grant  lost,  may  be  renewed,  266. 

Certain  grants  heretofore  issued  to  surveyors,  &c.,  confirmed,  266. 

Certain  other  grants  declared  valid,  266. 

Grants  on  entries  extending  to  two  or  more  counties,  confirmed,  267. 

Mistakes  of  surveyors  and  secretary,  how  corrected,  267. 

Application  to  correct  surveys,  to  be  made  in  three  years  after  date  of  grant,  267. 

Persons  aggrieved  by  issue  of  grants,  how  to  proceed,  268. 

Proceedings  and  judgment  in  such  cases,  268. 

Copy  of  proceedings  vacating  grants  filed  in  secretary's  office,  268. 

Cherokee  lands  not  included  in  this  chapter,  268. 

Grants  and  letters  patent  repealed  in  supreme  court,  197. 

Decree  in  such  cases,  197. 

Land  bid  off  by  the  State  for  taxes,  subject  to  entry,  624. 

Secretary  to  take  receipts  for  grants,  —  may  send  them  by  mail,  557. 
ENTRY-TAKER.    See  Entries  and  Grants. 
.  Oath  of,  437. 

To  execute  bond  in  $2,000,  263. 

Names  of  justices  present  at  his  qualification  to  be  recorded,  446. 

His  office  to  be  kept  at  the  court  house,  263. 

Suits  on  his  bond,  446. 

56* 


666  INDEX. 

ENTET-TAKER,  {Conlmued). 

To  be  brought  in  six  years,  373. 
Fees  of  entry-taker,  552. 
EQUITY.     See  Courts  of  Equity. 

EQUITY  OF  REDEMPTION.     See  £xcc«(i(ms;  Redemptum. 
ERROR.     See  Writs  of  Error. 
ESCAPE. 

Escape,  wilful  or  negligent  of  criminals  committed,  misdemeanor,  209. 
What  necessary  for  the  State  to  prove,  209. 
Duty  of  attorney-general  and  solicitors  in  such  cases,  209. 
Sherifl'  permitting  escape  of  one  in  execution  liable  in  action  of  debt,  561. 
ESCHEATS  AND  DERELICT  PROPERTY,    o&e  Executors  and  Adminislrators. 

University  endowed  with  escheats,  &c.,  596. 
ESTATES. 

Estates  in  tail  converted  into  estates  in  fee-simple,  269. 

In  joint-tenancies  other  than  partnerships,  share  of  deceased  not  to  vest  in  survivor,  269. 
Certain  contingent  limitations  in  deeds  and  wills,  how  construed,  270. 
Infants  unborn  may  take  by  deed,  270. 

Limitation  to  the  heirs  of  a  living  person  to  include  his  children,  unless,  &c.,  270. 
In  conveyances  to  uses,  possession  transferred  to  use  without  livery,  270. 
Grantees  of  reversions  to  have  such  rights  against  tenants,  as  grantors  had,  270. 
Such  tenants  to  have  same  rights  against  grantees,  as  against  grantors  of  reversions,  271. 
Buying  or  selling  pretended  rights  or  titles,  prohibited,  271. 
Collateral  and  certain  other  warranties,  void,  271. 
Warranties  to  stand  as  personal  covenants  only,  271. 
Estates  for  life  not  devised,  to  go  as  inheritances,  250, 
Estates  in  slaves,  limitable  by  deed  as  by  will,  245. 
What  slaves  pass  under  the  term  "  increase,"  611. 
EVIDENCE. 

Necessary  to  support  title  under,  H.  E.  McCulIock,  272. 

Grant  or  copy  of,  from  proprietors  sufficient,  272. 

Laws  of  other  State,  how  proved,  272,  623. 

Private  acts  proved  by  printed  statute  book,  272. 

Other  evidence  of  private  acts,  272. 

Plats  and  surveys  proved  by  copies  from  secretary's  office,  272. 

Letters  of  administration,  &c.,  returns,  &c.,  in  other  States,  proved  by  copies,  278. 

Records  and  papers  lodged  in  State  offices,  proved  by  copy,  273. 

Wills  or  deeds  in  other  States  proved  by  copy,  273. 

Wills  in  office  of  secretary  proved  by  copy,  274. 

In  suits  on  bonds  of  officers,  executors,  &c.,  evidence  against  principal  good  against  sureties,  273. 

Evidence  in  suits  concerning  land  in  Haywood  and  Henderson,  273. 

Variance  between  judgment  and  execution  not  to  affect  title  of  property  sold,  274. 

Deeds  registered  and  lost  and  registry  destroyed,  presumed  to  have  been  in  due  form,  274. 

Protest  of  notary,  &c.,  evidence  of  demand,  &c.,  112. 

Copies  of  book  accounts  when  evidence,  114. 

Certified  copies  of  appointment  or  removal  of  commissioners  of  affidavits,  evidence,  125. 

Certificate  of  commissioners  of  affidavits,  &c.,  when  evidence,  and  of  what,  124. 

Returns  of  constables  evidence,  130. 

Letters  patent  joriwd/ncie  evidence  of  incorporation  —  copies  admissible,  138. 

Court  may  order  production  of  books,  &c.,  as  in  equity,  177. 

Return  of  service  of  notice  by  sherifr,  evidence  of  notice,  184. 

Return  on  scire  facias  evidence  of  sei-vice,  184. 

Examinations  of  criminals  and  witnesses  before  magistrates,  when  evidence,  187. 

Registered  deeds  proved  by  copies,  unless  original  ordered  by  court,  244. 

Decrees  operating  as  conveyances,  proved  by  copy,  194. 

Copies  of  wills  evidence  of  their  contents,  610. 

Indebtedness  of  donor,  evidence  only  of  fraud,  &c.,  299. 

Presumption  of  title  in  favor  of  literary  fund  or  assigns,  383. 

Copy  of  record  evidence  against  justices  failing  to  take  official  bonds,  &c.,  446. 


INDEX. 

EVIDENCE,  ( Continued). 

Kegistei-'s  books  copied  by  order  of  court,  evidence  as  originals,  4D9. 
Clerks'  and  sheriffs'  bonds  proved  by  copies,  in  suits  by  treasurer  against  them,  528. 
Certificate  of  treasurer  or  comptroller  and  copies  of  papers  in  office,  evidence,  529. 
Overseers  of  roads  competent  to  prove  notice  to  hands,  535. 
Order  of  court  directing  footways,  presumed  after  ten  years  use,  535. 
Receipt  of  sheriff  for  process,  evidence  against  his  sureties,  561. 
What  kind  of  evidence  received  in  cases  of  insnrrection  of  slaves,  &o.,  572. 
Evidence  of  slaves  and  persons  of  color,  against  whom  allowed,  578. 
Commissioner  of  wrecks  may  prove  summons  to  aid  in  saving  vessels,  618. 
Revised  Code  evidence  of  the  law,  621. 
EXECUTIONS. 

Real  estate  may  be  taken  in  execution,  275. 

To  issue  against  real  and  personal  estate;  latter  first  sold,  275. 

Levies  on  leaseholds  of  three  years  under  justice's  execution,  returned  to  court,  275. 

Trust  estates  liable,  275. 

Purchaser  to  hold  discharged  of  trust,  276. 

Riglit  of  redeeming  real  estate  liable  to  execution,  276. 

Sheriff's  deed  to  refer  to  mortgage,  &o.,  276. 

Articles  exempt  from  execution,  276. 

Other  articles  for  one  who  is  a  householder,  exempt,  276. 

How  set  apart  and  assigned,  276. 

Sale  of  exempt  property  void,  276. 

Not  to  be  levied  on  growing  crops,  till  matured,  276. 

Justice's  execution  levied  on  land  returned  to  court;  proceedings,  277. 

If  not  satisfied,  execution  to  issue  for  balance,  277. 

Lands  and  slaves,  how  and  where  to  be  sold,  277. 

Proviso,  as  to  sales  decreed  by  court  of  equity,  277. 

Other  places  of  sale  may  be  appointed  by  county  court,  277. 

Notice  to  be  given  of  sales,  277. 

Advertisement  how  made ;  for  what  time,  277. 

What  time  of  day  sales  to  begin,  277. 

Penalty  for  selling  contrary  to  law,  277. 

Return  of  "no  sale  for  want  of  bidders,"  how  to  be  made,  278. 

Penalty  for  omission,  278. 

Justice's  execution  to  bind  from  levy  only,  278. 

Sheriff,  &c.,  may  take  forthcoming  bond  for  property  levied  on,  278. 

The  surety  to  be  bailee  of  officer,  by  taking  a  list  of  the  property,  278. 

Sales,  when  made  under  after-levied  executions,  278. 

Officer,  how  to  proceed  on  the  bond  when  broken,  276. 

Defendant  to  be  notified  five  days  before  court  of  justice's  execution  levied  ou  land,  279. 

Otherwise  notice  directed  by  court,  279. 

Allowance  made  by  county  court  to  officers  for  keeping  stock,  &c.,  taken  in  execution,  27i 

Officer  to  state  his  account  and  return  it;  to  furnish  debtor  a  copy,  279. 

Purchaser  may  recover  of  defendant  in  e.-cecution,  if  his  title  fiiil,  279. 

Defendant  dying  in  execution,  debt  not  discharged,  279. 

Executions  to  be  issued  by  clerks  in  six  weeks;  penalty  ^100,  280. 

Officers  to  prepare  deeds  for  property  sold,  280. 

Costs  on  executions  to  be  paid  to  clerks;  penalty  §40,  280. 

Executions  from  county  courts  may  issue  to  any  county,  178. 

May  issue  for  maintenance  of  bastard  child,  109. 

What  executions  to  issue  against  corporations,  134. 

Not  to  issue  on  a  judgment  after  a  year  and  day,  unless  revived,  181. 

Party  in  execution  not  to  be  discharged  on  habeas  corpus,  182. 

Administrator  d.  b.  n.  may  have  execution  on  judgment  got  by  former  administrator,  1S2. 

Property  of  principal,  in  certain  cases,  to  be  first  levied  on,  184. 

Stayer  of  execution  regarded  as  principal,  to  surety  in  contract  dissenting  from  stay,  686. 

To  issue  from  courts  of  equity,  and  bind  as  at  law,  190. 

From  supreme  court,  how  to  issue  and  bo  returnable,  196. 


667 


668 


INDEX. 


EXECUTIONS,  ( Continued). 

Not  to  issue  till  opinion  is  delivered  to  clerk,  198. 

For  costs  in  supreme  and  superior  courts,  to  issue  from  said  courts  respectively,  199. 

May  issue  against  after-acquired  estate  of  discharged  insolvents,  338. 

From  court-martial,  how  and  to  whom  issued,  407. 

Eent-crops  exempt  from  execution,  except  for  taxes,  368. 

To  issue  j'early  for  damages  assessed  in  mill-cases,  429. 

To  issue  for  residue  unsatisfied  by  sale  of  estate  attached,  168. 

Also  for  tax  of  solvent  persons,  having  no  property  in  the  county,  E21. 

Not  to  issue  for  fines  and  forfeited  recognizances,  till  after  sci.fa.,  235. 

Execution  from  justice  of  the  peace  —  see  Justices  of  the  Peace. 

From  justice  against  person  removing  out  of  the  county  —  how  proceeded  with,  365. 
EXECUTOR  de  son  tort.     See  Executors  and  Administrators,  2S9. 
EXECUTORS  AND  ADMINISTRATORS. 

Letters  testamentary  and  of  administration  granted  by  county  court,  282. 

Administration,  to  whom  granted,  282. 

When  several  in  equal  degree,  282. 

Executors  not  to  act  till  of  full  age,  607. 

Executors  and  administrators  to  take  oaths,  282. 

Forms  of  oaths,  435,  437. 

Administrator  to  give  bond:  Fonn  of  its  condition,  282. 

Bond  of  administrator^encfen(e  lite,  how  conditioned,  283. 

His  duties  and  powers  — may  collect  debts  and  sell  by  Ucense  of  court,  283. 

Not  to  be  sued,  283. 

Powers  to  cease  on  probate  or  grant  of  administration,  283. 

His  suits,  how  prosecuted,  283. 

Limitation  of  time  to  run  from  grant  of  common  administration,  &c.,  283. 

Special  administrator,  in  certain  cases  appointed  by  three  justices,  283. 

His  power  and  duties,  284. 

To  give  bond,  284. 

Administration,  when  granted  by  courts  of  equity,  284. 

Executors  residing  out  of  State  to  give  bond  within  one  year,  284. 

A  man  marrying  an  executrix  to  give  bond,  284. 

Administering  before  letters,  prohibited;  penalty.    Proviso,  286. 

In  certain  cases  when  no  administration  for  three  months,  clerk  to  administer,  509. 

Persons  intermeddling  without  letters,  to  forfeit  $500,  508. 

Bonds  of  administrators,  &o.,  how  payable;  remedy  on  them,  285. 

Inventorj'  to  be  returned,  when,  285. 

Perishable  estate  to  be  sold,  285. 

Other  personal  estate,  when  sold  by  order  of  court,  285. 

Terms  of  sale,  285. 

Powers  under  wills  not  prejudicing  creditors,  to  be  pursued,  285. 

Sales,  &c.,  to  be  at  public  auction,  between  10  and  4  o'clock,  286. 

Penalty  for  otherwise  selling,  &c.,  cases  excepted,  286. 

Dignity  of  debts  prescribed,  286. 

Administrators,  &c.,  to  advertise  within  two  months,  286. 

Advertisements,  how  proved  and  perpetuated,  266. 

Executors,  &c.,  to  settle  at  the  end  of  two  years,  286. 

Refunding  bond  to  be  given  on  settling,  286. 

Remedy  of  creditors  thereon,  266. 

Bond  and  descriptive  list  of  property  to  be  filed  in  county  court,  287. 

Creditors  to  have  sci.fa.  on  bond,  when  and  how,  267. 

Property  remaining  seven  years  unclaimed,  paid  to  university,  287. 

Executors,  &c.,  in  certain  cases  may  have  settlement  by  petition,  287. 

What  due  to  absentee,  or  infant  without  guardian,  paid  to  clerk,  287. 

Clerk  liable  on  his  bond ;  allowed  compensation,  287. 

Way  invest  trust  funds  in  State  bonds,  485. 

Debtor  named  executor  not  discharged,  288. 

Trust  estates  in  personalty  to  be  assets,  288. 


INDEX.  669 

EXECUTORS  AND  ADfflNISTRATOES,  {  Continued). 

Executors,  &c.,  allowed  nine  months  to  plead  in  court,  288. 

Also  before  justices  of  the  peace,  286. 

Warrant  returned  to  court,  on  plea  of  no  assets,  288. 

Costs,  how  adjudged,  when  warrant  returned  to  court,  288. 

Lien  on  estate  not  created  by  commencement  of  suit,  288. 

Lauds  contracted  to  be  sold  by  deceased,  conveyed  by  executors,  &c.,  288. 

Commissions  not  above  5  per  cent,  allowed  executors,  &c.,  288. 

Proviso  as  to  sale  of  lands,  289. 

Sureties  of  executors,  &c.,  in  danger  of  loss  may  h.ive  relief,  239. 

Proceedings  on  petition  for  relief,  289. 

Lands  devised  to  be  sold  by  executors,  &c.,  by  whom  sold,  269. 

Who  chargeable  as  executor  de  son  tort,  289. 

Executors  or  administrators  of  executors  or  administrators,  liable  for  devastarit,  290. 

Right  of  action  to  survive  to  executors  and  administrators,  and  executors  of  executors,  290. 

When  personalty  insufficient  to  pay  debts,  executors,  &c.,  may  sell  real  estate,  290. 

License  to  sell,  how  obtained,  290. 

Sale  of  part  or  whole  may  be  licensed,  290. 

Heirs,  &c.,  to  be  parties,  290. 

When  petition  may  be  heard,  290. 

Terms  of  sale  to  be  directed  by  court,  290. 

Proceeds  to  be  assets  to  pay  debts  and  charges  of  administration,  291. 

Proceeds  not  disbursed,  to  be  realty,  291. 

Bonds  of  admhiistrators,  &c.,  held  as  security  for  real  and  personal  assets,  291. 

Additional  bond  may  be  required,  291. 

What  real  estate  subject  to  be  sold,  291. 

Proviso  for  bondjide  purchasers  without  notice,  291. 

Judgment  in  case  of  fraudulent  conveyance,  291. 

Issue  to  try  title  may  be  ordered,  292. 

Executor  to  give  bond,  when  licensed  to  sell,  292. 

Proceeds  of  all  realty  to  be  legal  assets,  292. 

Specific  devisees,  whose  lands  are  sold,  entitled  to  contribution,  292. 

Undevised  real  estate,  first  charged  with  debts,  292. 

To  what  period  this  mode  of  selling  realty  applies,  292. 

Sales  by  heirs  and  devisees  within  two  years,  &o.,  void  as  to  creditors,  292. 

Eight  of  dower  saved,  293. 

Crops  ungathered,  shall  go  to  executors,  &o.,  and  not  to  devisee  or  widow,  293. 

Service,  how  made  on  absent  executors  not  having  given  bond,  203. 

Female  executrix,  &c.,  may  swear  to  inventory,  &c.,  before  a  justice,  293. 

Book  debts  proved  by  executors,  &c.,  when  and  how,  114. 

Form  of  oath,  435. 

Administrator  d.  b.  n.  may  have  execution  on  judgment  got  by  former  administrator,  182. 

Capias  in  equity  not  to  issue  against  executors,  &c.,  unless  by  judge's  order,  187. 

Rents  due  after  death  of  tenant  for  life,  to  go  to  executor,  &c.,  369. 

Apportioned  according  to  time  of  enjoyment,  369. 

Executor,  &c.,  to  report  to  clerk  of  county  court  an  account  of  taxable  real  estate  of  deceased 
persons,  508. 

Surety  paying  debt  of  deceased  principal  to  have  like  priority  as  creditor,  585. 

Executor  competent  witness  to  prove  execution  of  wills,  608. 

Executor,  &c.,  to  proceed  in  two  years  to  ascertain  the  share  of  a  child,  born  after  will  made,  613. 
EXHIBITERS  OF  CURIOSITIES,  tax  on.     See  Revenue,  614. 
EXHIBITS. 

In  equitj'  cases  supreme  court  proved  by  witnesses,  198. 
EXTORTION. 

Sheriff  and  other  officei-s  not  to  take  unlawful  fees  —  see  Salaries  and  Fees. 
FACULTY.     See  Asylums  for  Deaf,  cfc. ;   University. 
FAIRS. 

Appointed  by  county  courts,  294. 

Commissioners  appointed  to  regulate  them,  294. 


670 


INDEX. 


FAIRS,  {  Continued). 

Inhabitants  to  have  free  liberty  of  fairs,  294. 

Agricultural  Society  to  provide  place  for  holding  annual  fairs,  67. 
False  judgment,  see  Recordari. 
FALSE  LIGHTS  ON  SEA-COAST.     See  Crimes  ani  Punu-hments^lU. 
FALSE  PRETENCES,  CHEATING  BY.     See  Crimes  and  PunislmenU,  2U. 
FALSE  RETURNS. 

Penalty  of  sheriff  for  false  return  SoOO,  561. 
FEES.    See  Salaries  and  Feet. 
FELONY.     See  Crimes  and  Punishments. 

Not  punished  by  particular  statute,  how  punished,  207. 
FEME  COVERT.    See  Husband  and  Wife;  Deeds. 
FENCES. 

Planters  to  keep  sufficient  fences  around  cultivated  ground,  291. 
Damages  by  stock  when  fence  sufficient,  how  recovered,  294. 
To  stock  by  persons  not  having  legal  fence,  how  recovered,  295. 
Penalty  on  slave  injuring  stock  without  order,  &o.,  295. 
Appeals  from  justice  concerning  stock,  tried  de  novo,  296. 
Dan  river  sufficient  fence,  295. 

North-west  branch  of  Cape  Fear  river  not  sufficient,  295. 
Penalty  for  using  North-west  branch  as  a  fence,  295. 
Burning,  pulling  down,  or  removing  fences,  misdemeanor,  223. 
To  keep  unlawful  fences,  misdemeanor,  210. 
May  be  put  across  canal  or  dam  by  proprietor,  when,  256. 
FERRIES.     See  Soads,  Ferries,  4-c. 
FINANCE,  COMMITTEE  OF. 

Committee  of  finance  for  counties  may  be  appointed,  142. 
Duties  and  powers  of,  142. 
Oath  of  members,  437. 
FINANCE  COMMITTEE  OF  LEGISLATURE. 

To  examine  and  report  the  state  of  the  treasury,  693. 
FINES  AND  FORFEITURES. 

Fines,  forfeitures,  penalties,  &c.,  to  be  collected  by  sheriff  and  paid  in  three  months,  140. 
County  wherein  ofience  is  done  to  have  fines,  141. 
May  be  remitted  or  lessened  at  any  time  by  judge,  235. 
If  paid  into  office  to  be  refunded  by  clerk,  235. 
By  county  trustee,  if  paid  to  him,  235. 
May  be  remitted  or  lessened  by  county  court,  when,  235. 

Recognizances  forfeited,  remitted,  or  lessened  before  judgment,  by  county  court,  236. 
Executions  for  fines,  &c.,  not  to  issue  till  after  scire  facias,  235. 
Joint  scire  facias  to  issue  on  recognizances,  235. 
How  to  be  executed,  236. 
Sureties  of  sheriff  liable  for  fines,  &c.,  660. 
FIRE  COMPANIES. 

Members  of,  exempt  from  militia  duty,  399. 
FIRE-WOOD. 

To  be  sold  in  towns  by  the  cord,  on  pain,  &c.,  354. 
FISH.     See  Inspections;   Oysters,  ij-c;  Rivers  and  Creeks. 
FISHERIES. 

Fisheries  and  mines  considered  in  valuing  land  for  taxation,  519. 
FLAX-SEED.     See  Inspections,  349. 

FLOAT-BRIDGES.     See  Roads,  Ferries,  atul  Bridges,  639. 
FLOUR.     See  Inspections. 
FOOTWAYS.    Sec  Roads,  Ferries,  and  BrUlges. 

Paths,  when  put  by  proprietor  across  canals  and  dams,  260. 

Footways  and  hollow  bridges  —  Overseer  to  make  wliere  court  shall  direct,  638. 


INDEX.  671 

FORAGE.     See  Inspections,  354. 

FORCIBLE  ENTRY  AND  DETAINEE. 
Forcible  entry  indictable,  296. 
Summary  remedy  before  justitje  for,  296. 
Jurors  summoned  by  order  of  justice,  296. 
Penalty  on  sheriff  and  otliers  failing  to  assist  justice,  296. 
Restitution  not  awarded  to  party  out  of  possession  tliree  years,  29T. 
Proceedings  returned  to  superior  court,  297. 
Justices,  &c.,  acting  informally  not  indictable,  unless,  &c.,  297. 
All  defects  amendable,  297. 

FORFEITURES  AND  FORFEITED  RECOGNIZANCES.     See  Fines  mid  Forfeitures. 

FORGERY.     See  Crimes  and  Punishments. 

Passing  or  attempting  to  pass  forged  bonds,  &c.,  214. 

Forging,  or  fraudulently  issuing  or  passing  certificates  of  stock,  215. 

Knowingly  selling  forged  judgments,  bonds,  &c.,  215. 

Forging  licenses  for  slaves  to  trade,  misdemeanor,  220. 

stamp,  note,  &o.,  of  tobacco  inspector,  343. 
Party  whose  name  is  forged  a  competent  witness,  232. 
FORMS  OF  RETURNS,  &c.,  for  governor's  election  furnished  by  secretary,  313. 
FORMS  OF  TAX  LISTS.    See  Revenue,  518. 
FORNICATION.     See  Bastard  Children. 

When  a  misdemeanor — punishment,  211. 
FORTHCOMING  BOND.    See  Executions,  278. 
FRANCHISES,  SALE  OF.    See  Cm-porations,  135. 
FRAUDS  AND  FRAUDULENT  CONVEYANCES. 

Conveyances  of  lands  or  goods  to  defraud  creditors,  void,  298. 

Or  to  defraud  purchasers,  298. 

Voluntary  conveyances  not  void  because  of  indebtedness  of  donors,  298. 

Indebtedness,  evidence  only  of  fraud,  299. 

Conveyances  bonajide  upon  good  consideration,  valid,  299. 

Bondjide  purchases  without  notice  under  deeds  made  on  illegal  consideration,  valid,  299. 

Pui'chasers  of  estates  fraudulently  conveyed,  to  have  relief  in  equity,  299. 

Proceedings  by  sci.fa.  when  property  fraudulently  conveyed,  299. 

What  decree  if  defendants  do  not  appear ;  or  appear  and  confess,  300. 

Proceedings  when  defendant  denies  the  facts,  300. 

Where  the  judgment  is  rendered  by  a  justice,  300. 

Contracts  for  sale  of  land  and  slaves  void,  unless  iu  writing,  300. 

Leases  for  mining  also,  300. 

Gifts  of  slaves  void,  unless  in  writing  and  attested,  300, 

Proviso,  as  to  advancements  to  children,  300. 

Sales  of  slaves  not  iu  writing  and  attested,  void,  300. 

Unless  accompanied  with  actual  delivery,  300. 

Contracts  charging  executors,  &c.,  personally,  or  any  with  debts,  &o.,  of  others,  to  be  iu  writ- 
ing, 301. 

With  Indians,  to  be  in  writing,  and  witnessed,  &c.,  301. 

Persons  removing  debtors  to  defraud  creditors,  liable  for  their  debts,  301. 

Attorney  guilty  of  fraud  to  pay  double  damages,  102. 

Real  estate  conveyed  in  fraud  may  be  sold  by  executors,  &c.,  to  pay  debts,  291. 

Proviso  iu  favor  of  bonajide  purchasers  without  notice,  291. 

What  judgment  rendered  in  case  of  fraudulent  conveyance,  291. 

Conveyances  in  fraud  of  tax  ou  collateral  descents,  &c.,  void,  509. 

Marriage  settlements  to  be  registered,  else  void  as  to  creditors,  245. 

When  good  against  creditors,  245. 

Release  in  fraud  of  penal  action,  void,  180. 
FREE  NEGROES.    See  Slaves  and  Free  Negroes. 

Living  with  others,  or  on  their  land,  to  be  listed  by  employer  or  landlord,  616. 


^^2  INDEX. 

FUGITIVES  FROM  JUSTICE. 

fZT  ""Z  f  \"^-'"'^  '"  ''"'''  '•"P"^-^^  ^■^''■•Kea  with  capital  crimes,  229. 
From  otlier  States  cliarged  with  high  crimes,  to  be  committed,  229. 

GAMING.     See  Crimes  and  Punishments;  Slaves  ami  Free  Negroes    ' 

White  person  playing  at  games  with  slaves,  &c.,  guilty  of  misdemeanor,  225. 
l-articipator  in  unlawful  games  shall  testify  of  the  gaminf  236. 
Not  to  be  prosecuted  therefor,  236.  °' 

Bilhards  and  g.aming  in  five  miles  of  Chapel  HU],  forbidden,  596 
GAMING  CONTRACTS. 

All  gaming  or  betting  contracts,  void,  302. 
Securities  for  money  or  property  lent  for  betting,  void,  302. 
PLiyers  and  betters  competent  witnesses,  302. 
GARNISHEE.     See  AUachmeiU. 
GATES  AND  BARS. 

Tax  on  gates  of  turnpikes  and  across  highways,  506. 
May  be  erected  across  cart-ways,  541. 
Gates  erected  across  highway  by  leave  of  court,  541. 
Penalty  for  injuring  gates  or  bars,  541. 
GENDER.     See  Statutes,  Construction  of,  (fc,  581. 
GENERAL  ASSEMBLY.    See  Slate  Constitution. 

Senate  and  house  of  commons  convened,  denominated  the  General  Assembly  13 

Election  for  members  of,  when  and  where  held,  303.  ' 

Senatorial  districts,  of  what  counties  composed,  303. 

House  of  commons,  how  composed,  304. 

Qualification  of  members  — see  State  Constitution,  13. 

Members,  how  elected,  304. 

Separate  places  of  election  established  or  discontinued  by  county  court  304 

Time  and  places  advertised  by  sheriff,  305.  ' 

Inspectors  of  each  precinct  appointed  by  county  court,  305. 

Failing  to  act,  guilty  of  misdemeanor,  305. 

Clerk  to  furnish  a  list  to  sherifl-,  who  shall  notify  them,  305. 

If  not  appointed  or  they  refuse  to  act,  how  supplied,  305. 

Boxes  for  receiving  tickets  furnished  by  slieriff,  305. 

Tickets  how  received  and  put  into  boxes,  305. 

Voters  how  to  give  in  their  tickets,  305. 

A  list  of  voters  to  be  kept,  305. 

Boxes  how  opened  and  tickets  counted,  305. 

Qualification  of  voters,  14,  23. 

May  be  required  to  swear  to  their  quaUficatious,  306. 

Inspectors  judges  thereof,  306. 

Manner  of  maldng  up,  returning  and  comparing  polls,  and  declaring  persons  elected,  306. 

Proviso,  as  to  Carteret,  Currituck,  and  Hyde  counties,  300. 

Polls  in  senatorial  districts,  how  made  up;  where  compared,  308 

Penalty  on  officer  for  default,  $500  and  misdemeanor,  307. 

Polls  examined,  &c.,  in  presence  of  three  justices,  307. 

Tie  election,  how  decided,  307. 

Pay  of  sheriff  for  comparing  polls  in  senatorial  districts,  307. 

Vacancies  before  session  to  be  notified  by  sheriff  to  governor,  307. 

Failing  to  notify,  misdemeanor,  307. 

Members  resigning,  &c.,  to  notify  governor,  308. 

Governor  to  order  a  new  election,  308. 

Elections  under  writs  from  governor  or  speaker,  held  as  other  elections,  SOB. 

What  time  of  day  opened  and  closed,  308. 

List  of  votes,  on  request,  furnished  momborii  and  candidates,  308. 

Penalty  on  sherifl' neglecting  duty  in  regard  to  elections,  308. 

Held  by  coroner  when  no  sheriff,  308. 

When  no  sheriff- or  coroner,  three  justices  to  appoint  a  freeholder,  808. 

If  sheriff  die,  successor  to  make  returns,  308. 


INDEX.  673 


GENERAL  ASSEMBLY,  ( Chntinued). 

Musters  not  to  be  on  day  of  election,  308. 

Nor  anned  men  assembled  at  the  place :  —  Pen.ilty,  303. 

Bribery  at  elections,  penalty,  309. 

Treating  at  elections,  penalty,  309. 

Members  giving  money  to  secure  their  elections,  expelled,  309. 

Assembly  to  meet  on  third  Monday  in  November,  309. 

May  be  convened  in  certain  cases,  by  governor  and  council,  309. 

When  by  the  council,  309. 

Members  to  convene,  and  attend,  309. 

Penalty  for  failing  in  their  duty,  309. 

May  be  remitted  by  Assembly,  309. 

To  have  freedom  of  speech,  and  protection  from  arrest,  &c.,  309. 

Returned  to  Assembly  by  sheriff,  310. 

Persons  contesting  seats,  how  to  proceed,  310. 

Witnesses  failing  to  attend,  penalty  on,  310. 

Voter  shall  testify  how  he  voted,  310. 

Pay  of  witnesses,  310. 

Private  laws  —  proceedings  to  procure  them,  310. 

Acts  of  Assembly,  when  to  take  effect,  311. 

Journals  of,  deposited  in  office  of  secretary  —  copies  certified  by  him,  311. 

Principal  clerks  to  hold  office  till  others  appointed,  311. 

Two  door-keepers  appointed  by  keeper  of  capitol  or  secretary,  &c.,  311. 

Their  pay,  311. 

Grave-stones  for  members  interred  in  Raleigh,  311. 

Member  not  to  serve  as  sheriff,  558. 

Pay  of  members  and  officers  of  Assembly;  how  ascertained  and  paid,  644,  845. 
GIFTS. 

Of  slaves  to  be  proved  and  registered,  244. 

All  deeds  of  gift  to  be  registered,  244. 

void,  unless  m  writing  and  attested,  300. 
GOVERNOR  AND  COUNCIL. 

Governor,  how  chosen,  24. 

Election  of,  when  held  and  how  conducted,  312. 

His  qualifications,  15. 

His  oath,  438. 

His  salary,  542. 

Returns  of  election  by  sheriff,  when  and  how  made,  312. 

Examined  by  secretary  of  State,  312, 

If  not  regular,  messenger  sent  after  them,  31S. 

Poll  books  filed  by  sheriff  with  clerk  of  county  court,  313. 

Clerk  to  give  receipt,  which  sheriff  shall  transmit  to  secretary,  313. 

If  proper  returns  not  made,  secretary  to  inform  Assembly,  313. 

Proceedings  thereupon,  313. 

Forms  of  returns  and  directions  furnished  by  secretary,  313. 

When  opened,  and  by  whom,  313. 

Election,  how  detenniued,  314. 

Clerk  omitting  any  duty  about  the  election  to  pay  $100,  314. 

Sureties  liable  for  forfeitures,  &c.,  of  returning  officers,  314. 

Expenses  of  messenger  taxed  with  the  costs,  314. 

Sheriff's  pay  for  returns,  how  ascertained  and  paid,  314, 

Persons  contesting  eleetion  to  give  notice,  &c.,  314. 

Proceedings  thereon,  314. 

Depositions  how  tsiken,  314. 

Governor  to  reside  in  Raleigh  — provided  with  house,  &c.,  315. 

Private  secretary  appointed,  316. 

Letter  book  kept  in  executive  office,  315. 

Council  to  meet  in  Raleigh,  316, 

Seals  for  State  and  courts  procured  by  governor,  315. 

57 


674  INDEX. 

GOVERNOn  AND  COUNCIL,  ( Continued). 

How  prepared  and  paid  for,  315. 

Lost  State  seals  to  papers,  how  replaced,  315. 

Thanksgiving  day  set  apart  by  proclamation,  315. 

Certain  corporations  created  by  letters  patent,  issued  by  governor,  136. 

To  appoint  judges  of  special  terms,  160. 

Governor  and  council  may  convene  Assembly,  when,  309. 

Governor  may  remit  militia  fines  and  penalties,  414. 

Governor  and  judges  of  supreme  court  to  be  trustees  of  the  library  —  and  appoint  librarian,  4S6. 

Governor  to  designate  documents  to  be  preserved  and  bound,  4S6. 

To  appoint  keeper  of  arms  at  Ncwbem,  481. 

To  procure  standard  measures,  599. 

Not  to  pardon  neglscts,  in  certain  elections.,  of  returning  officers,  225. 

Governor  and  others  a  board  to  take  charge  of  public  buildings  and  lots,  554. 

Counsellor  of  State  not  to  serve  as  sheriff,  558. 
GRAND-JURY. 

How  many  to  be  drawn,  163. 

Oaths  of  foreman  and  members,  439,  440. 

Oath  of  officer,  440. 

Names  of  grand-jurors  informing,  indorsed  on  presentment,  229. 

To  be  charged  to  present  free  negroes  coming  into  the  State,  575. 

To  present  freed  slaves  violating  the  law  concerning  their  emancipation,  575. 

To  visit  the  jail  at  each  court,  145. 

To  be  furnished  by  sheriff  with  a  list  of  retailers  of  liquors,  562. 
To  present  orphans  without  guardians,  and  abuses  of  guardians,  820. 

List  of  taxes  received  by  sheriff  from  clerks,  and  on  unlisted  taxables,  laid  before  gi-and-jury,  526. 
GRANTS.    See  Entries  and  Grants. 
GRANTS  AND  WARRANTS  ON  THE  TREASURY. 

Not  to  be  paid  unless  they  express  the  consideration,  593. 
Nor  unless  first  entered  and  certified  by  comptroller,  128. 
GRAVE-STONES. 

Provided  for  members  of  Assembly  interred  in  Raleigh,  311. 
GROWING  CORN.     Subject  of  larceny,  206. 
GUARD  FOR  INSANE.     See  Asylum. 
GUARD  FOR  JAIL.     See  Prisoners. 
GUARDIAN  AND  WARD. 

Fathers,  by  deed  or  will  may  appoint  guardians,  317. 

Superior  and  county  courts  to  have  cognizance  of  all  matters  concerning  orphans,  317. 

To  appoint  guardians  and  take  bonds,  317. 

Justices,  &c.,  liable  for  taking  insufficient  security;  Proviso,  317. 

Court  may  commit  the  person  to  one,  and  estate  to  anotiier,  317. 

May  appoint  yearly  sums  for  support  and  education,  317. 

Commissions  to  tutor  on  disbursements  only,  317.  ' 

In  case  of  divorce,  who  to  be  guardian  of  the  children  and  their  estates,  318. 

May  commit  the  custody  to  the  parents  alteniately,  318. 

Bonds  how  payable,  and  remedy  on  them,  318. 

Names  of  justices  accepting  bond  to  be  recorded  by  clerk,  318. 

Proviso  for  justices  dissenting,  318. 

Guardians  of  estates  of  children  whose  fathers  are  alive,  318. 

One  bond  given  when  wards  have  property  in  common,  818. 

Clerks  of  superior  court,  and  clerks  and  masters  to  certify  appointment  of  guardian  to  county 

court,  319. 
Bonds  to  be  renewed  triennially,  319. 
Clerk  to  summon  guardians  failing  to  renew,  319. 
Guardians  to  render  on  oath  account  of  ward's  estate,  319. 
Orplians'  court  held  —  accounts  rendered  annually,  319. 
Clerk,  ex  ojficio,  to  summon  defaulting  guardians,  319. 


INDEX.  675 


GUARDIAN  AND  WARD,  (Continued). 

Power  and  duty  of  courts,  when  guardians  abuse  their  trust,  319. 

And  when  they  or  their  sureties  are  likely  to  become  insolvent,  319. 

Guardians  removed,  or  liable  to  be,  to  be  reported  to  attorney-general,  &c.,  320. 

How  to  be  proceeded  with,  320. 

Receiver  appointed  to  manage  estate  under  direction  of  court,  &o.,  320. 

Compeusation  to  attorney-general  and  solicitor,  320. 

Property  how  obtained  from  receiver,  320. 

Grand-jury  to  present  orphans  without  guardian,  and  abuses  of  guardians,  320. 

Estates  of  such  orphans  to  be  secured,  &c.,  321. 

Fee  of  clerk  for  summons,  by  whom  paid  —  Proviso,  321. 

To  take  possession  of  wards'  estates,  321. 

To  sell  by  order  of  court  their  perishable  estate,  321. 

To  lend  their  money,  and  account  for  interest  annually,  321. 

Bonds  to  bear  compound  interest,  321. 

May  be  assigned  to  wards  on  settlement,  321. 

Slaves  and  stock,  when  to  be  kept  on  land,  321. 

Proviso,  if  stock  becomes  too  numerous,  321. 

Lands  and  slaves,  when  and  how  to  be  rented  and  hired,  322. 

Houses,  fences,  &c.,  to  be  kept  in  repair,  322. 

Sales,  hirmgs,  &c.,  how  made,  322. 

Guardian  liable  for  suffering  ward's  land  to  lapse,  or  be  forfeited  for  taxes,  322. 

When  he  may  sell  timber,  &c.,  322. 

Allowed  disbursements  and  expenses,  and  commissions,  322. 

Wards  residing  abroad,  and  havmg  property  in  the  State,  may  remove  it,  322. 

By  bill  or  petition  in  equity,  323. 

Powers  of  courts  of  equity  over  orphans,  &c.,  not  abridged,  323. 

Estates  of  infants  sold  to  promote  their  interest,  when  and  how,  323. 

JIanner  of  makuig  sale,  and  how  proceeds  secured  and  appUed,  328. 

Wien  ward  is  indebted,  how  guardian  shall  sell  his  property,  324. 

Proceeds  to  be  appUed  as  assets  of  deceased  debtors,  324. 

Sureties  of  guardians  in  danger  of  loss,  how  reUeved,  324. 

Female  guardians  may  swear  to  their  returns  before  justice,  324. 

Appeal  from  appointment  or  removal  of  guardian,  72. 

Sureties  of  guardian  discharged  three  years  after  ward's  age,  373. 

Guardian  may  invest  ward's  funds  in  State  bonds,  485. 

Action  of  account  lies  against  executors,  &c.,  of  guardians,  180. 

HABEAS  CORPUS. 

How  obtained  in  vacation,  325. 

Duty  of  the  officer,  &c.,  to  whom  the  writ  is  directed,  325. 

Of  the  judge  on  its  return,  325. 

To  be  applied  for,  within  two  terms  after  imprisonment,  326. 

Returned  in  open  court,  when  in  session,  326. 

Penalty  on  judge  refusing  the  writ,  326. 

On  officer  neglecting  to  obey  it,  326. 

Penalty  for  again  imprisoning  one  released  on  the  writ,  326. 

Persons  committed  for  capital  offences,  entitled  to  trial  or  discharge,  when,  326. 

Writ  granted  in  civil  cases,  326. 

Subpoenas  to  issue  for  parties,  326. 

Costs  of  writ,  how  and  by  whom  paid,  326. 

Party  in  execution  not  discharged  on  habeas  corpus,  182. 

HARBORING. 

Harboring  runaways,  or  enticing  away  slaves  —  misdemeanor,  218. 
HARBORMASTER.    SeePihU;   Quaranline,  ij-c. 
HEADING.     See  hispeclions. 
HEALTH.    See  Quarantine  and  Health. 
HEALTH  OFFICER.     See  Quarantine  and  Beallh. 


676  INDEX. 

HEIRS.     See  Descentt. 

Limitation  to  the  heirs  of  a  living  person  to  include  his  chiUren,  unless,  &c.,  270. 
HOGS.     See  Cattle,  <f-c. 
HOGS'  LARD.     See  Infections,  3b0. 
HORSES.     See  Cattle,  ifc. 

Tax  on,  brought  into  the  State  for  sale,  612. 
HOSPITAL.     See  Quaraniiiie  and  Health. 
HOUSES,  BURNING  OF.     See  Crimes  and  Punishments. 
HOUSES,  INJURIES  TO.     See  Crimes  and  Punishments,  223. 
HUNTING.     See  Burning  Woods,  and  Hunting. 

Hunting  deer  out  of  season  on  lands  of  others  — penalty,  115. 

Penalty  for  hunting  on  others'  lauds,  after  being  forbidden,  116. 
HUSBAND  AND  WIFE. 

Real  estate  of  wife  not  to  be  sold  or  leased  without  her  consent,  327. 

Husband's  interest  exempt  from  execution,  328. 

What  marriage  settlements  good  against  creditors,  245. 

Wife  may  insure  husband's  life,  and  will  the  interest,  828. 

To  be  assets  In  certain  cases,  if  she  survive,  328. 

Wife  divorced  from  bed  and  board,  to  have  after  acquired  property,  258. 

May  sue  and  be  sued  alone,  263. 

Obtaining  alimony,  what  privileges  decreed  to  her,  25S. 

Alimony  allowed  pending  suit  for  divorce,  253. 

Husband  becoming  party  plaintiff  with  wife,  to  give  security  for  costs,  64. 

Within  what  time/eme  coverts,  &c.,  shall  rebuild  mills,  42". 

Proceeds  of  wife's  land  sold  by  court,  secured  for  her,  453. 

Time  allowed  mfe  to  except  to  decree  for  partition,  &c.,  456. 

How  and  when  married  women  may  convey  by  will,  607. 

WUls,  how  and  where  proved,  607. 

Deeds  of  husband  and  wife,  how  proved  —  see  Deeds,  <f-c. 

For  proceedings  in  divorce  and  alimony  —  see  Divorce  and  Alimony. 

IDIOTS. 

Idiotcy  and  lunacy  ascertained  by  inquisition,  328. 
Guardians  appointed  by  county  court,  329. 
Person  and  estate  may  be  committed  to  different  persons,  329. 
Sale  of  their  estates  ordered  by  court,  when,  329. 
How  and  for  what  purpose  sold  by  courts  of  equity,  329. 
'   Heirs  and  next  of  kin  to  be  parties,  329. 
Proceeds,  how  applied  and  secured,  —  liow  descend,  &c.,  329. 
Estates  without  guardian,  managed  by  courts  of  equity,  330. 
Proceedings  against  insane  imprisoned  for  crime,  330. 
May  be  tried  on  becoming  sane,  330. 

Surplus  income  advanced  in  certain  cases  to  next  of  kin,  830. 
Purposes  for  making  such  advancements,  330. 
To  whom  piiid,  330. 

All  persons  interested  made  parties,  330. 
Eulo  to  be  observed  by  the  court,  330. 
Persons  advanced  selected  by  the  court,  331. 
Advancements  secured  against  waste,  331. 
Appeal  and  removal  to  supreme  court,  331. 

Of  what  kind  of  insane,  may  advancements  of  their  estates  be  made,  331. 
Decree  suspended  on  restoration,  331. 

Within  what  time,  persons  non  compos  shall  rebuild  mills,  427. 
Proceeds  of  their  land  sold  for  partition,  secured  for  their  benefit,  453. 
Their  land  not  to  be  sold  for  taxes,  623. 
Land  held  jointly  with  them,  how  sold  for  taxes,  523. 

ILLEGITIMATE  CHILDREN.    See  Bastard  Childrtn;  Descents;  Legacies,  j-c. 


INDEX.  677 

INDEX. 

To  be  made  to  acts  of  assembly,  489. 

General  index  to  register's  books,  made  by  order  of  court,  499. 
INDICTMENT.    See  Criminal  Proceedinffs. 

No  person  to  be  put  on  trial  but  on  indictment  found,  229. 

Not  to  be  quashed  or  judgment  stayed  for  formal  objections,  230. 

Certain  defects  not  to  vitiate,  231. 

Proceedings  of  court,  what  part  and  how  set  forth,  230. 

What,  in  indictments  for  perjury,  or  subornation,  231. 

In  indictment  for  second  offence,  how  first  conviction  stated,  231. 

Ownership  of  property  in  common,  how  stated,  231. 

Intent  to  defraud,  what  st.atement  thereof  sufficient,  232. 

Tax  on,  one  dollar,  paid  to  county,  140. 
INDIGENT  INSANE.     See  Asylum  for  Insane. 
INFAMOUS  PERSONS. 

Persons  convicted  of  infamous  crimes,  how  restored  to  citizenship,  331. 

Petition  filed  in  county  of  conviction,  332. 

Not  within  five  years  thereafter,  332. 

Restored  but  once,  332. 

Depositions  not  read  ou  application,  332. 

Persons  convicted  of  perjury,  or  subornation  of,  rendered  infamous,  212. 
INFANTS.     See  Guardian  and  Ward. 

May  sue  by  next  friend,  179. 

Infant  trastees  how  to  convey,  246. 

Unborn,  may  take  by  deed,  270. 

Infant  wards  residing  abroad  may  remove  their  property,  how,  322,  323. 

Estates  of  infants  sold  to  promote  their  interests,  when  and  how,  323. 

Manner  of  making  sale ;  px'oceeds  how  applied  and  secured,  323. 

When  ward  is  indebted,  how  guardian  to  sell  his  property,  324. 

Proceeds  applied,  as  assets  of  deceased  debtors,  324. 

Estates  of  fem.ales  marrying  under  fifteen  without  consent,  secured,  &c.,  392. 

Fem.ales  under  fourteen  and  males  under  sixteen  years,  incapable  of  marrj'ing,  393. 

Within  what  time  infants,  &c.,  shall  rebuild  mill,  427. 

Sums  charged  in  p.artition  on  infant's  land  not  payable  till  full  age,  453. 

But  to  bear  interest,  and  guardian  to  pay  when  assets,  453. 

Proceeds  of  their  lands  sold  for  partition  secured  for  them,  453. 

Time  allowed  tliem  to  except  to  decree  of  partition,  456. 

To  have  guardian  on  partition  by  court,  457. 

Their  land  not  to  be  sold  for  taxes,  523. 

Land  held  jointly  with  them,  how  sold  for  taxes,  623. 

When  not  barred  by  statute  of  limitations  —  see  Limitations. 
INFERIOR  OFFENCES  OF  SLAVES.    ?,ii^  Slaves  and  Free  Negroes. 
INFIRM  PERSONS. 

How  to  give  iu  tax  lists,  516. 

When  excused  from  poll-tax,  506. 

Infirrayeme  coverts  how  privily  examined,  242. 
IN  FORMA  PAUPERIS.     See  Paupers. 

INFORMATIONS.     See  Corporations;  Criminal  Proceedings ;    Quo  Warranto;  Supreme  Court. 
INJUNCTIONS. 

May  be  issued  by  judges,  190. 

Not  to  issue  for  greater  sura  than  sworn  to,  nor  without  security,  191. 
Nor  but  within  four  months  after  judgment,  unless,  &c.,  191. 
Money  deposited  on  getting  injunction,  paid  over  on  security,  192. 
When  dissolved,  judgment  rendered  on  injunction  bond,  192. 
In  such  case,  how  uncertain  damages  ascertained,  192. 
Against  judgment  of  the  State,  when  to  issue,  192. 

57* 


678  INDEX. 

INQUEST.    See  Coronir. 
INQUIRY,  WRIT  OF. 

In  certain  cases  executed  at  rendition  of  judgment,  169, 181. 
INSANE.     See  Asylums ;  Idiots  and  Lunatics. 
INSOLVENT  DEBTORS. 

Confined  in  jail  twenty  days,  how  discharged,  333. 

Ten  days'  notice  given,  and  oath  taken,  333. 

Notice,  when  given  to  the  clerk,  334. 

In  certain  cases  court  may  discharge  without  notice,  334. 

When  creditor  resides  out  of  the  State,  who  notified,  and  how,  338. 

Proceeduigs  out  of  court,  returned  to  court  and  recorded,  334. 

Debtor,  after  twenty  days'  confinement,  may  file  schedule,  &c.,  334. 

May  be  discharged  in  prison  bounds,  339. 

Proceedings  thereon  and  oath,  334. 

Debtor  filing  schedule  and  taking  oath  discharged,  335. 

Jailer  to  furnish  debtor  with  food,  335. 

If  debtor  unable  to  pay,  may  collect  fees  from  creditor,  336, 

After  twenty  days,  may  demand  security  for  fees,  335. 

Debtor  taken  on  ca.  sa.,  or  in  custody  after  judgment,  may  give  bond,  &c.,  335. 

On  failure  to  appear,  judgment  on  bond,  335. 

On  tendering  bond,  to  be  released  from  custody,  335. 

Bond  taken  by  constable  returnable  to  next  county  court,  335, 

On  what  days  returned  —  penalty  for  failure,  336. 

When  returned  to  second  court  after  arrest,  336. 

Schedule  filed  ten  days  before  court,  336. 

Case  continued  for  cause,  336. 

In  case  of  death  bond  discharged,  336. 

Debtor  having  notified,  &c.,  may  take  oath,  &o.,  336. 

Discharged  as  to  creditors  notified,  336. 

Notices  filed  in  court,  336. 

Debtor  appearing,  not  having  given  notice,  to  be  imprisoned,  336. 

Unless  time  allowed  for  giving  notice,  336. 

On  suggestion  of  fraud  issues  may  be  made,  336. 

Particulars  of  fraud  to  be  suggested  on  oath,  337. 

Debtor  may  be  examined  on  oath,  337. 

Issues  may  be  continued,  337. 

On  fraud  found,  or  refusal  to  answer,  debtor  imprisoned,  337, 

On  making  disclosure  and  giving  notice,  discharged,  337. 

Any  creditor  notified  may  become  party,  337. 

Appeal  by  one  or  more,  337. 

After  issue,  debtor  discharged  only  by  trial,  &c.,  337. 

C«.  sa.  not  to  issue  without  afiidavit,  337. 

Debtor  surrendered  after  final  judgment  not  to  be  committed  without  affidavit,  &c.,  106. 

May  issue  against  one  of  several  defendants,  337. 

Property  in  schedule  vested  in  sheriff,  338. 

Duty  of  sheriff  as  to  the  property,  338. 

Commissioners  appointed  to  divide  debtor's  efiects,  338. 

Surety  may  surrender  his  principal,  338. 

Execution  may  issue  against  after  acquired  estate,  338. 

Debtor  swearing  falsely  deprived  of  all  relief,  338. 

Females  not  to  be  imprisoned  for  debt,  339. 

Free  negroes  in  bastardy  cases,  &c.,  not  discharged  as  insolvents,  339. 

Debtor  dying  in  execution,  not  discharged  of  the  debt,  279. 
INSOLVENT  TAXABLES. 

In  what  cases  allowed  by  court  and  credited  to  shcrifl",  525,  526. 
INSPECTIONS. 

J'laccs  of  landing  and  inspection  continued ;  others  may  be  appointed,  340. 

Inspectors  ajipointed  by  county  courts:  Proviso  as  to  inspectors  in  Craven,  S41. 

To  give  bonds  renewable  yearly,  341. 


INDEX. 

INSPECTIONS,  (,Omiinued). 

To  attend  at  times  and  places  appointed,  341. 

Exporting  mei'cliant  not  to  be  inspector  —  penalty,  341, 

Not  more  than  six  inspectors  in  any  town,  342. 

Not  to  appoint  deputies:  Proviso  for  flour  inspectors,  342. 

To  hold  ofHce  during  good  behavior,  342. 

Two  general  inspectors  for  Wilmington,  appointed  by  commissioners,  342. 

Vacancies,  how  filled  when  county  court  not  in  session,  342. 

Assistant  allowed  in  certain  cases,  342. 

Principal  liable  for  acts  of  assistant,  342. 

Inspectors  of  tobacco,  duty  of,  343. 

To  give  a  manifest  of  each  hogshead,  343. 

Condemned  tobacco  may  be  reinspected  after  six  months,  343. 

None  to  be  exported  without  inspection,  343. 

Penalty  for  falsely  branding  tobacco,  343. 

Forgery  of  stamp,  note,  &c.,  of  tobacco  inspector,  343. 

Manner  of  proceeding  where  a  note  is  lost,  344. 

Proceedings  by  one  demanding  tobacco  injured  since  inspection,  344. 

Turners  up  and  coopers  of  tobacco  appointed,  344. 

Inspectors  to  report  to  court  the  misbehavior  of  turners  up,  345. 

Owners  may  turn  up,  &c.,  their  tobacco,  345. 

Tobacco  pickers  appointed,  346. 

No  inspector  to  buy  tobacco,  345. 

Warehouses  may  be  built  or  rented,  345. 

Where  warehouses  burnt,  inspector  not  liable  on  his  notes,  &c.,  345. 

Rent  of,  regulated,  346. 

How  repaired  or  rebuilt,  346. 

Private  warehouses  to  have  same  rules  as  to  rent,  346. 

Tobacco  inspectors  for  Fayetteville,  346. 

To  designate  qualities,  346. 

To  take  for  inspection  lugs  from  each  break,  846. 

Inspector  of  flour  not  to  trade  in  flour,  346. 

Degrees  of  flour,  346. 

Barrel  of,  to  weigh  106  pounds  —  What  flour  to  pass  inspection,  34C,  347. 

Penalty  on  miller,  manufecturer,  or  seller,  violating  foregoing  provisions,  347. 

Inspectors  in  certain  cases  may  unpack  flour,  347. 

Seller  of  barrels  of  flour  dofioient  in  quantity,  liable  for  deficiency,  347. 

Casks  of  flour,  how  inspected,  347. 

Owner  dissatisfied,  how  to  obtain  a  reexamination,  348. 

Penalty  for  exporting  flour,  not  passed  by  inspector,  348. 

On  shipper  receiving  uninspected  flour:  Proviso,  348. 

Not  liable  to  be  reinspected,  in  sixty  days,  348. 

Cask  not  condemned,  in  certain  cases,  if  it  contain  196  pounds,  348. 

Penalty  for  packing  in  a  branded  cask,  349. 

For  altering  inspector's  brand,  &c.,  349. 

On  inspectors,  for  neglect  of  duty,  349. 

Flour  may  be  sold  in  Fayetteville,  without  inspection,  349. 

Term  "barrel,"  or  "cask"  of  flour,  to  include  half  barrel,  349. 

Inspectors  of  beef,  &c.,  duty  of,  and  penalty  for  misconduct,  849. 

Beef  and  pork  to  be  inspected,  349. 

Hogs'  lard  —  rice  — fish,  to  be  inspected,  350. 

Barrels  of  turpentine  and  tar,  of  what  weight ;  of  pitch,  &c.,  of  what  size,  350. 

Water  not  considered  a  fraudulent  mixture  in  tar,  351. 

Allowance  where  barrels  weigh  more  or  less  than  staudard  quantity,  351. 

Turpentine  barrels  to  be  branded:  Penalty  on  inspector  failing,  351. 

Producers  of  tar,  pitch,  and  turpentine  to  brand  barrels  with  initials  of  name.s,  361. 

Inspectors  to  enter  in  a  book  maker's  names,  &c.,  351. 

Beef,  &c.,  not  exported  in  60  days,  reinspected:  Tar,  pitch,  and  turpentine,  in  20  days,  351. 

Coopers  not  to  make  barrels  for  sale,  but  as  directed  by  law,  351. 


679 


680  mDEX. 

INSPECTIONS,  ( ConUnued). 

Seller,  or  exporter  of  beef,  &c.,  to  produce  inspector's  certificate,  &o.  —  penalty,  362. 

Penalty  on  master  receiving  tliem  uninspected :  Proviso  as  to  Newbern,  352. 

Shingles,  of  what  size,  352. 

Lumber,  how  inspected,  352. 

Inspectors  of  saw-mill  lumber  near  Wilmington  appointed,  352. 

Lumber  and  ton  timber,  how  inspected  on  C.  Fear  river,  353. 

Penalty  for  inspecting  lumber  by  other  rules  than  prescribed,  353. 

Steam  mill  lumber,  how  inspected,  353. 

Saw-mill  lumber  and  ton  timber,  how  measured,  353. 

Shingles,  boards,  &c.,  to  be  culled,  353. 

No  inspector  to  purchase  cullings,  &c.,  353. 

Penalty  and  misdemeanor  for  falsely  acting  as  legal  inspector,  353. 

Fines,  &c.,  under  this  chapter,  how  applied,  353. 

Disputes  about  extra  cooperage  in  Wilmington,  how  determined,  353. 

Sale  of  firewood  in  towns  to  be  by  cord,  364. 

Inspectors  of  wood  for  Newbern,  354. 

Of  provisions  and  forage,  appointed  by  any  county,  354. 

Duty  of  such  inspectors  —  To  give  bond  —  Fees,  &c.,  354. 

Penalty  for  selling  forage  or  provisions,  uninspected,  354. 

Inspectors  of  forage,  &c.,  may  appoint  deputies,  354. 

Fees,  by  whom  paid — Penalty  for  extortion,  354. 

Oath  of  inspector  of  flour,  438. 

tobacco,  438. 
other  articles,  438. 

Suits  on  inspector's  bonds  to  be  brought  in  six  years,  373. 
INSPECTOR  OF  ARTICLES.     Sea  Inspeclions ;  Salaries  and  Fees. 
INSPECTORS  OF  ELECTIONS.     See  General  Assembly ;  Ekclorsof  Presideni,  j-c. 
INSURANCE  COMPANIES,  tax  on.     See  Revenue,  614. 
INSURRECTION  OF  SLAVES.    See   Crimes  and  PunishmenU;  Justice*  of  the  Peate ;    Slaves 

Free  Negroes. 
INTEREST. 

Rate  of,  six  per  cent.,  597.    . 

Shall  run  on  judgments,  and  contracts  except  penal  bonds,  178. 

Defendant  appe.iling  for  delay,  m  certain  cases,  to  pay  additional  four  per  cent.,  74. 

To  be  distinguished  from  principal  by  the  jury,  178. 

Ascertained  by  clerk  in  judgments  final  on  bonds,  &c.,  178. 

On  bonds,  contracts,  &c.,  when  and  from  what  time  given.  111. 

On  contracts  for  deUveiy  of  specific  articles.  111. 

Tax  on  interest,  609. 
INTERNAL  IMPROVEMENT. 

Board  of  internal  improvements,  incorporated,  356. 

Sessions  of  board;  pay  of  members  and  secretary,  356. 

Board  may  make  rules  and  by-laws,  356. 

To  keep  record  of  proceedings,  and  report  to  assembly,  356. 

Its  funds  deposited  in  banks,  356. 

Public  treasurer  to  keep  accounts  of  board;  board  to  examine  accounts  yearly,  356. 

Clerk  to  aid  treasurer:  —  his  compensation,  35G. 

Duty  of  board  in  making  contracts,  356. 

State  to  be  stockholder  in  companies  to  the  amount  advanced,  356. 

Railroad  and  other  companies  may  enter  on  lands  to  build  their  work?,  &c.,  357. 

Proceedings  to  assess  damages :  —  commissioners  appointed,  367. 

Infants,  &c.,  how  notified,  357. 

A  day  for  commissioners  to  meet,  appointed  by  court,  357. 

One  commissioner  may  adjourn  from  day  to  day,  357. 

Owners  to  have  five  days'  notice  of  meeting,  357. 

Commissioners  to  be  sworn;  their  oath,  357. 

To  meet  and  assess  damages;  —  May  administer  oaths,  367. 


INDEX  681 

fNTERNAL   IMPROVEMENT,  (Omtlnued). 

Damages  how  assessed,  358. 

Report  of  their  proceedings  subscribed,  form  of,  358. 

To  be  returned  to  court;  proceedings  thereon,  358. 

Appeal  allowed  from  judgment  on  some,  358. 

Ou  judgment  and  payment  of  damages,  company  to  have  the  fee,  358. 

Dwelling-houses,  &;c.,  not  to  be  condemned,  338, 

May  take  materials  from  adjacent  land,  358. 

Who  to  value  them,  and  proceedings  therefor,  358,  359. 

Justice  to  preside  at  the  trial,  and  render  judgment,  359. 

Appeal  allowed,  359. 

Width  of  land  condemned  for  railroads,  359. 

For  pladk-roads,  canals,  and  turnpikes,  359. 

Quantity  allowed  for  depots,  359. 

Railroads,  &c.,  crossing  other  roads,  not  to  obstruct  them,  359. 

Roads  may  be  turned  by  company,  &c.,  359. 

Damages  allowed  owners  on  whose  land  roads  are  turned,  369. 

New  road  to  be  made  good  as  former  one,  359. 

Companies  to  furnish  engineering  bureau  with  maps,  &c.,  of  improvements,  359. 

To  keep  account  of  produco  carried,  360. 

And  report  to  governor,  360. 

Commissioners  and  freeholders  paid,  360. 

Costs  paid  by  company,  except,  &c.,  360. 

No  railroad,  plank-road,  &c.,  established  but  by  law,  360. 

Penalty  and  misdemeanor  therefor,  360. 

Board  to  appoint  officers  to  represent  the  State,  360. 

Maliciously  obstructing  or  injuring  railroads,  when  misdemeanor,  when  felony,  222. 

Wilful  injuries  to  internal  improvements,  how  punished,  c&c,  222. 

County  courts  may  appoint  commissioners  to  examine  streams  and  make  improvements,  630. 

Titles  of  companies  to  estates  condemned  for  right  of  way,  not  barred  by  time  or  occupation,  375. 

Accounts  of  board  of  internal  improvements  to  pass  through  comptroller's  office,  594. 
INTESTATES'  ESTATES. 

How  distributable  —  see  Legacies,  ^c,  369. 

Widow  dissenting  to  take  as  on  intestacy,  603. 

Her  share  allotted,  if  practicable,  with»ut  deranging  the  will,  603. 

If  she  do  not  dissent,  to  have  a  share  of  intestate  property,  603. 

Widovf  of  intestate  leaving  no  kindred  to  have  all  the  personalty,  603. 

Proceedings  to  obtain  it,  603. 

To  give  bond  if  next  of  kin  appear,  &c.,  604. 

Proviso  for  infants,  and  persons  non  compotes,  601. 
INTOXICATION.     See  Religious  Socielies. 
ISSUE  OF  DECEASED  LEGATEE. 

To  take  parent's  legacy,  when,  601. 

JACKASSES,  tax  on,  507. 

Not  to  be  exhibited  near  places  of  worship,  50C. 
JAILS  AND  JAILERS.     See  Court  House ;  Prisons,  ^c. ;  Prisoners. 

Prisoners  to  be  confined  in  common  jail,  229. 

Jailer  to  furnish  debtor  with  food,  335. 

Keeping  prisoners  of  United  States  to  have  same  fees,  &o.,  475. 

Prisoner  for  crime  to  pay  jail  charges,  476. 

Jailer  to  cleanse  jail,  furnish  diet,  &c.,  477. 

To  confiiie  prisoners  in  proper  apartments,  478. 

Penalty  for  otherwise  confining  them,  47S. 

Fees  of  jailer,  553. 

Sheriff  to  have  custody  of  public  jails,  561. 

Maliciously  burning  jail  punishable  with  death,  203. 

Debtor  confined  for  other  cause  may  be  detained  on  ca.  sa.  by  order  of  court,  106. 
JEWELLER,  tax  on.     See  Revenue,  611. 


682  INDEX. 

JEWELRY,  tax  on.     See  Revenue,  610. 
JOINT  OBLIGATIONS. 

On  joint  obligations  or  contracts  one  or  more  may  bo  sned,  178. 

Shall  survive  against  executors,  &c.,  of  deceased  obligor,  178. 

Judgment  how  entered  against  executors,  c&c.,  and  surviving  obligors,  178. 

Several  actions  on  joint  contracts,  to  be  consolidated,  178. 

One  joint  owner  of  personalty  barred  by  time,  rights  of  others  not  affected,  375. 

Bar  of  time  repelled  but  as  to  himself,  by  admission  of  a  partner  or  joint  contractor,  375. 
JOINT-TENANCY.     See  Tenants  in  cmi-num. 

Share  of  deceased,  not  to  vest  in  survivor,  except  in  partnerships,  269. 

Action  of  waste  by  tenant  against  cotenant,  698. 
JOURNALS  OF  ASSEMBLY.     See  PuUh  Printing. 

To  be  deposited  In  office  of  secretaiy  of  State,  311. 

Copies  to  be  certified  by  him,  311. 
JUDICIAL  PROCESS. 

When  may  issue,  90. 
JUDGE  ADVOCATE.    See  Militia. 
JUDGES.     See  Courts,  County  and  Superior  ;   Courts  of  Equity ;   Court,  Supreme. 

Appointed  by  General  Assembly  and  commissioned  by  governor,  14. 

To  hold  office  during  good  behavior,  14. 

In  their  election,  voting  to  be  viva  uoce,  23. 

May  be  removed,  for  what  cause,  and  by  what  vote,  25. 

May  be  impeached,  25. 

Salaries  not  to  be  diminished  during  continuance  in  office,  26. 

To  take  and  subscribe  oaths,  to  be  deposited  with  secretary,  159, 195. 

Form  of  supreme  court  judges'  oath,  439. 

Their  power  and  authority,  196. 

Shall  prescribe  rules  of  practice  for  superior  courts,  198. 

Judges  of  supreme  court  and  governor  to  be  trustees,  &c.,  and  appoint  librarian,  486. 

Form  of  superior  court  judges'  oath,  439. 

Jurisdiction  and  powers  of  judges  of  superior  coui-ts,  159. 

To  be  selected  from  the  State  at  large,  159. 

To  be  appointed  for,  and  reside  in,  some  particular  district,  159. 

Penalty  of  $2,000  for  acting  without  qualifying,  160. 

To  ride  according  to  present  arrangement  of  circuits,  160. 

Ridings  to  be  published  before  February  and  August,  160. 

Not  to  ride  same  circuit  twice  successively,  but  may  exchange  courts,  160. 

Presiding  judge  may  appoint  special  term ;  his  pay,  160. 

To  have  the  powers  of  other  judges,  160. 

Judge  appointing  clerk  of  superior  court  in  vacation,  may  empower  two  justices  to  take  bond,  &c.,  120. 

Presiding  judge  of  superior  court  to  appoint  clerk  and  master,  123. 

In  certain  cases  may  commission  two  justices  to  qualify  and  take  bond,  124. 

How  to  dehver  his  charge  to  the  jury,  185. 

Salary  of  judges  of  supreme  court,  542. 
of  judges  of  superior  court,  543. 

Certificate  of  attendance  to  be  produced  by  judge  of  superior  court,  else  deductions  made.  543. 

Clerks  of  certain  courts  not  to  give  certificates  until  4  v.  M.  Thursday,  643. 

JUDGMENT  BONDS. 

Void  as  to  power  to  enter  judgment,  178. 

JUDGMENTS. 

To  stand  till  reversed,  181. 

What  judgment  on  default,  in  appeals  from  justices' judgments,  181. 

Defendant  may  satisfy  judgment  by  paying  money  to  clerk,  184. 

On  judgment  final  by  default,  on  bonds,  &c.,  amount  ascertained  by  clerk,  178. 

Judgment  of  justice  against  defendant  removing,  may  be  removed  to  another  county,  365. 

Judgments  presumed  to  be  paid  after  ten  years,  376. 

Justices'  judgment  barred  after  seven  years,  373. 


INDEX.  683 

.1 UGGLERS,  tax  on.     See  Revenue,  514. 
JURISDICTION. 

Action  when  tlismisaed  for  want  of  jurisdiction,  1G5. 

Attachments  for  injuries,  &c.,  dismissed  if  improperly  issued,  97. 

Of  county  and  superior  courts  —  see  Courts,  County  and  Supei^ior. 

Of  courts  of  equity  —  see  Courts  of  Equity. 

Of  justices  of  the  peace  —  see  Justices  of  the  Peace. 

Of  commissioners  of  navigation^  see  Pilots,  462. 

Of  mayor  of  towns  —  see  Toums. 
.lUKORS  AND  .JURY. 

Number  of,  how  drawn  and  summoned  —  see  Cowts,  County  and  Superior. 

May  be  dispensed  with  at  two  terms  of  county  court,  1B2. 

For  special  terms,  how  provided,  162. 

Tales  jurors  may  be  summoned,  163. 

Failing  to  attend,  fined  two  dollars,  163. 

Regular  jury  not  attending,  fined  twenty  dollars,  163. 

Jlay  make  excuse  at  next  term,  163. 

Petit  jurors,  how  sworn  in  civil  cases,  163. 

Form  of  oath,  440. 

How  sworn,  in  State  cases  not  capital,  163. 

Form  of  oath,  440. 

Form  of  oath  in  capital  oases,  440. 

Right  of  challenge  not  affected  by  jury  being  sworn,  163. 

Four  may  be  challenged  in  civil  cases,  163. 

Names  to  be  called  before  impanelled,  163. 

Constable  attending  petit  jurors  sworn,  for  what  purpose,  164. 

Tax  may  be  laid  by  county  court  to  pay  jurors,  142. 

When  issues  of  fact  tried  by  jury  in  courts  of  equity,  190. 

In  capital  cases  judge  may  issue  a  special  venire,  233. 

Penalty  on  jurors  for  not  attending,  233. 

.Jurors  exempt  from  service  of  civil  process,  when,  163. 

Regular  ministers,  physicians,  surgeons,  millers,  registers,  and  postmasters,  exempt  from  jury,  103. 

•Jurors  in  cases  of  forcible  entiy,  &c.,  296. 

On  trial  of  mill  case  in  pais,  may  be  challenged,  429. 

Their  pay  in  such  cases,  429. 

Form  of  oath  in  such  cases,  440. 

in  laying  off  roads,  and  assessing  damages,  441. 
for  laying  off  dower,  440. 
JUSTICES  OF  THE  PEACE. 

Mode  of  appointment  and  term  of  office,  17. 

Office  vacated  on  conviction  of  infamous  crime  or  corruption,  26. 

Within  what  time  to  quaUfy,  361. 

Fonn  of  oath,  441. 

Penalty  for  acting  without  qualifying,  361. 

When  candidate  not  to  vote  in  the  election,  361. 

Removed  out  of  the  county  twelve  months,  to  vacate  office,  361. 

Power  in  their  counties,  361. 

•Justice  not  to  act  as  attorney  in  his  court,  nor  as  clerk  or  sheriff,  102,  362. 

Otherwise  to  vacate  his  office,  362. 

May  accept  office  under  United  States,  365. 

■Jurisdiction  in  civU  matters,  362. 

His  warrants  when  returnable,  362. 

Bail  to  be  taken  when  required,  362. 

Bail-bond  deemed  assigned  —  to  be  returned,  362. 

Officer  neglecting  to  take  bond,  to  be  special  bail,  362. 

Defendant  refusing  to  give  bail,  to  be  committed,  362. 

Warrants  when  tried;  duty  of  officer  respecting  them,  363. 

Bail  how  subjected,  363. 


684  INDEX. 

JUSTICES  OF  THE  PEACE,  (Continued). 

Proceedings  remored  to  county  court,  and  subjected  there  as  in  other  cases,  303. 

May  arrest  and  surrender  his  principal,  363. 

Execution  from  justice,  how  to  issue  and  be  returned,  363. 

May  be  stayed  by  giving  security ;  how  given,  303. 

Stay  not  allowed  in  suit  on  former  judgment,  364. 

May  for  cause  continue  trials,  304. 

Depositions  when  allowed  to  be  read,  364.  , 

When  judgment  rendered  in  party's  absence,  in  what  time  and  how  new  trial  obtained,  364. 

Execution  of  justice  when  returnable,  364. 

To  whom  issued,  and  against  what  property,  364. 

Levied  on  land,  returned  to  county  court,  305. 

Justice  to  direct  officer  to  summon  witness,  365. 

Penalty  on  witness  not  attending,  365. 

Execution  against  one  removing  from  the  count}',  how  proceeded  with,  366. 

Judgment  of  justice  may  be  removed  to  another  county,  365. 

Process  of,  not  to  abate  for  want  of  form,  365. 

Appeals  from  his  judgments  to  superior  or  county  court,  by  one  or  more,  365.  * 

Security  for,  how  given  and  proceeded  against,  366. 

To  be  returned  by  justice  on  or  before  second  day  of  term,  306. 

Witnesses  to  bo  summoned  by  him,  366. 

Persons  uuprovided  at  trial  with  security  for  stay  or  appeal,  allowed  ten  days,  &c.,  366. 

If  absent  because  of  sickness,  &o.,  allowed  ten  days  for  stay  or  appeal,  366. 

Proceedings  of  justice  under  two  preceding  sections,  366. 

Execution  may  issue  before  appeal,  or  stay,  367. 

Upon  security  given  for  stay  or  appeal,  officer  to  return  execution  to  justice,  367. 

Justice  to  restrain  rioters  and  disturbers  of  the  peace,  367. 

Duty  of  two  justices  with  the  sheriff,  in  suppressing  riots,  &c.,  367. 

Special  duty  of  justices  dwelling  nearest,  367. 

But  all  magistrates  to  act  in  suppressing  riots,  &c.,  367. 

On  malicious  warrants  for  peace,  and  petty  offences,  may  order  prosecutor  to  pay  cost^.  367. 

Inferior  offences  of  slaves  cognizable  by  one  justice,  571. 

Resignation  of  justice  to  be  delivered  to  clerk  of  county  court,  367. 

Remedy  before  justices  against  officers  receiving  and  neglecting  to  pay  over  money,  446. 

To  meet  on  second  and  third  days  after  election  to  take  bonds  of  sheriff,  559. 

May  in  certain  cases  appoint  special  constables,  130. 

Not  to  be  drawn  as  jurors  for  county  courts,  102. 

Sitting  in  case  of  forcible  entry,  &c.,  not  indictable  for  informality,  unless,  &c.,  297. 

May  celebrate  rites  of  matrimony,  390. 

Shall  certify  marriages  by  him  to  clerk  of  county  court,  391. 

Penalty  for  marrying  infant  females  under  fifteen  years,  &c.,  393. 

Liable  for  taking  insufficient  security  of  guardians,  317. 

Names  of  justices  accepting  bonds,  &c.,  recorded  by  clerk,  318. 

Proviso,  for  justice  dissenting,  318. 

Names  of  justices  taking  bond  on  giving  licenses  to  keep  inns,  &c.,  recorded,  448. 

present  at  qualification  of  sheriff,  coroner,  clerk,  entry-taker,  register,  nnd  con- 
stable, to  be  recorded  by  clerk,  446. 
Failing  to  take  bond  with  seaurity  bound  as  sureties,  446. 
Twelve  may  in  certain  cases  accept  bond  of  clerk,  120. 
Seven  may  call  out  militia  in  invasion  or  insurrection,  422. 
Three  may  order  them  out  to  suppress  outlawed  or  runaway  slaves,  423. 
Names  of  justices  to  be  furnished  to  secretary  by  clerk  of  county  court,  489. 
Exempt  from  working  on  roads,  541. 

A  justice  holding  court  may  commit  any  swearing  in  his  bearing,  698. 
Attachments  before  justices  —  see  AUachmeitt. 

KEEPER  OF  CAPITOL.    See  Seat  of  Governmenl. 
KEEPER  OF  PUBLIC  ARMS.    See  PuMic  Arms. 
Salaries  of,  481. 


INDEX.  685 

KEEPER  OF  PUBLIC  MILLS.    See  Mills  and  Millers. 

Excused  from  serving  on  juries,  163. 

Exempt  from  working  on  roads,  541. 
KINDRED. 

Within  what  degrees  may  marry,  393. 

LANDLORD  AND  TENANT. 

Rent  crops  exempt  from  execution,  except  for  taxes,  368. 

For  use  and  occupation  where  demise  is  not  by  deed,  landlord  may  recover,  368. 

One  let  into  possession  under  contract  of  purchase,  liable  for  use,  &c.,  368. 

ProTiso  as  to  void  parol  leases,  369. 

Rents  due  after  death  of  tenant  for  life  belong  to  executors,  &o.,  369. 

Apportioned  according  to  time  of  enjoyment,  369. 

Lessors  of  gold  mines  taking  rents  in  profits,  not  partners  with  lessees,  unless  by  special  contract,  430. 
L.\NDS.     S,e%  Entries  and  Grants;  Execution;  Revenue.  - 

Justice's  execution  levied  on  lands,  and  terms  for  three  years,  returned  to  court,  275,  365. 

If  not  satisfied,  execution  to  issue  for  balance,  277. 

Officer  to  notify  defendant  five  days  before  court,  279. 

Otherwise  notice  directed  by  court,  279. 

Lands  sold  under  execution  —  see  Executions,  277. 
for  taxes  —  see  Revenue,  522. 

Lands  of  deceased  debtors  made  assets  —  see  Executors  and  Administrators,  290. 
LARCENY. 

Stealing  or  robbery  of  bank-notes  or  other  securities,  felony,  206. 

Stealing  gi-owing  produce,  larcenj',  206. 

Distinction  between  grand  and  petit  larceny  abolished,  207. 

Both  punished  as  petit — Proviso  as  to  aggravated  cases,  207. 

Larceny  of  ton  timber  floating  on  Roanoke  river  —  see  Crimes  and  Punishments,  224. 
LAW. 

^Vhat  parts  of  the  common  law  in  force,  126. 

Laws  distributed  by  secretary  of  State,  488. 

Revised  code  to  be  received  as  evidence  of  the  law,  621. 

Private  acts  proved  by  printed  statute  book,  272. 

Other  evidence  of  private  acts,  272. 

Private  laws,  when  may  be  passed  by  General  Assembly,  24. 

Proceedings  to  procure  their  passage.  310. 

Acts  of  Assembly,  when  to  take  eSect,  311. 

Laws,  records,  and  judicial  proceedings  of  other  States,  how  proved,  as  prescribed  by  tne  laws  of 
the  State,  272,  273. 

How,  by  the  laws  of  Congress,  623,  624. 
LAWYERS.     See  Attorneys  at  Law. 

Tax  on  income  and  licenses,  514. 
LEAP-YEAR. 

Leap-year  day  counted  with  preceding  day,  as  one  day,  181. 
LEASES. 

Required  to  be  in  writing,  must  be  registered,  246. 

Levies  on  leaseholds  of  three  years  under  justice's  execution,  returned  to  court,  275. 

Lessors  of  gold  mines  taking  profits,  &c.,  not  partners  with  lessees,  unless  they  so  contract,  430. 
LEGACIES,  &c. 

Intestates'  estates,  how  distributed,  369. 

1.  Between  widow  and  one  or  two  children,  369. 

2.  Widow  and  more  than  two  children,  369. 

3.  When  there  is  a  widow  and  no  children,  370. 

4.  When  there  are  children  and  no  widow,  370. 

5.  When  no  widow  nor  children,  370. 

6.  But  a  mother,  brothers,  &c.,  370. 
Advancements  to  children  accounted  for,  370. 
Representation  among  collateral  kindred,  when  admitted,  370. 

58 


686 


INDEX. 


LEGACIES,  &o.,  ( Continued). 

Cliildren  to  render  on  oath  a  schedule  of  property  advanced,  370. 
Child  refusing  to  account,  not  entitled,  370. 

Illegitimate,  when  no  legitimate  children,  to  be  next  of  kin  to  their  mother,  370. 

And  to  each  other,  370. 

Legacies,  &c.,  recoverable  by  petition  in  superior  or  county  courts,  370. 
ChUd  legitimated,  to  be  of  kin  to  his  father,  109. 
LEGITIMATION.    See  Bastard  Children. 
LETTER  BOOK.    See  Governor  and  Council,  315. 
LIBEL. 

In  indictment  for,  defendant  may  show  the  truth,  233. 
LIBRARIAN. 

Appointed  by  trustees  of  public  libraiT-,  486. 

Salary  and  duty,  486. 
LIBRARY  OF  DOCUMENTS  — estabUshed,  485. 
LIEN. 

On  vessels  in  certain  cases,  99. 

On  property  attached  in  equity  from  time  of  bill  filed,  98. 

Mortgage  and  trust  deeds  good  against  creditors,  &c.,  only  from  registration,  245. 

On  estate  of  deceased,  not  created  by  commencement  of  suit,  288. 

Tax  on  real  estate  a  lien,  506.  .  , 

Eights  of  children  bom  after  parents'  will,  a  lien  on  the  estate,  613. 

Execution  of  justice  to  bind  from  levy  only,  278. 
LlfflTATIONS. 

Persons  to  claim  their  lands  in  seven  years,  else  be  barred,  372. 

Infants,  &o.,  to  have  three  years  after  disability  removed,  372. 

Persons  beyond  seas,  eight  years  after  title  accrued,  372. 

Proviso,  in  case  of  judgment  stayed  or  reversed,  372. 

Possession  21  years  under  color  of  title  and  known  boundaries  to  bar  the  State,  372. 

Time  within  which  personal  actions  to  be  brought,  372. 

Sureties  of  guardians  discharged  three  years  after  ward  of  age,  373. 

Suits  on  bonds  of  sheriffs  and  other  officers  barred  after  six  years,  373. 
on  justices' judgments,  after  seven  years,  373. 
against  bail  after  four  years,  proviso,  373. 

Proviso,  in  case  of  writ  of  error,  judgment  reversed,  or  if  process  cannot  be  served,  373. 

Saving  for  infants,/eme  corerts,  &c.,  373. 

Proviso,  when  defendant  is  beyond  seas,  or  non-resident,  373. 

Creditors  of  deceased  persons  b.irred  after  seven  years,  374. 

To  present  their  claims  in  two  years,  374. 

Or  be  barred,  if  executor,  &o.,  has  advertised,  374. 

Proviso,  as  to  disabilities  of  creditors,  374. 

And  where  executor,  &c.,  is  non-resident,  374. 

Time  indulged  on  request  of  executor,  &c.,  not  to  be  counted,  374. 

Time  during  contested  probate  and  gi-ant  of  administration,  not  to  be  counted,  374. 

Mortgage  of  personalty  to  be  redeemed  in  two  years  after  forfeiture,  374. 

Proviso,  that  mortgagee  may  foreclose,  374. 

Saving  for  persons  under  disabilities,  374. 

Fees  due  to  clerks,  &c.,  by  residents,  to  be  collected  in  three  years,  374. 

Judgments,  contracts,  &c.,  presumed  to  be  paid  after  ten  years,  375. 

Rights  of  mortgagor  and  mortgagee  presumed  settled  after  ten  years  from  forfeiture,  376. 

Adverse  possession  of  personal  property  three  years,  to  give  title,  376. 

Bar  by  time  of  one  joint  owner  of  personalty,  not  to  bar  others,  375. 

Bar  repelled,  but  as  to  himself,  by  admissions  of  a  partner,  or  joint  contractor,  875. 

Titles  of  railroad  and  other  companies  to  estates  condemned  for  right  of  way,  &c.,  not  barred  by 
time  or  occupation,  375. 

Action  for  homicide  to  be  brought  in  one  year,  66. 

Writs  of  error  in  county  or  superior  courts,  in  five  yoai-s,  75. 

Proviso,  for  persons  disabled,  75. 


INDEX. 

LIMITATIONS,  ( Continued). 

Attachment  for  injuries  to  issue  in  tliree  months,  96. 

Indictments  for  misdemeanors,  except,  &c.,  to  be  commenced  in  two  years,  unless,  &c.,  229. 

Proviso,  when  indictment  is  defective,  230. 

Petition  to  correct  surveys,  in  three  years  after  gi-ant,  267. 

Limitation  of  suits  against  estates,  to  run  from  common  administration,  &o.,  283. 

Literary  board  barred  by  time  only  when  the  State  is,  383. 

Injunction  not  to  issue,  but  in  four  months  after  judgment,  except,  &c.,  191. 
LIMITATIONS  BY  DEED  AND  WILL.    See  Deeds,  #c. ;  Estates;   Wills,  ^c. 

LIQUOR. 

Sale  of  liquors  in  a  mile  of  University,  forbidden.    Penalty  and  exception,  501. 
Dealers  in,  tax  on.     See  Revenue,  511. 
Free  negroes  not  to  sell  spirituous  liquors,  577. 
Not  to  be  sold  to  slaves,  unless,  &c.,  219. 
LIST-TAKERS  OF  TAXES.    &ee  Revenue;   Towns,  hU. 

LITERARY  FUND  AND  COMMON  SCHOOLS. 

Board  of  literature  established  and  incorporated  — Its  style,  378. 
Of  whom  composed  —  Secretary  appointed  —  Pay  of,  &c.,  378. 
Property  vested  in  the  corporation,  378. 
Cash  of,  deposited  in  treasury ;  —  how  paid  out,  378. 
Treasurer  to  keep  account  of  receipts,  &c.,  and  report  to  Assembly,  378. 
Board's  duty  in  having  swamp  lands  surveyed,  drained,  &c.,  379. 
Written  consent  of  owners  to  vest  title  in  corporation,  379. 
Where  owners  refuse,  how  corporation  to  proceed,  379. 
Lands  of  persons  improved  by  canals,  &c.,  to  pay  proportion  of  expense,  879. 
Board  may  appoint  engineer,  surveyor,  &c.,  379. 
May  enter  on  any  lands  for  surveying,  &c.,  380. 

Titles  to  swamp  lands  not  registered  vested  in  corporation;  Proviso,  380. 
May  sell  reclaimed  lands,  380. 

Proceeds  of  sale,  and  entry  money  to  become  principal,  386. 
Shall  expend  no  money  to  reclaim  lands,  unless,  &c.,  380. 
May  employ  counsel,  and  compromise  suits,  380. 
May  buy  or  exchange  Land,  380. 
Turnpike  from  Plymouth  to  Pungo  river  let  out,  380. 
Amount  appropriated  —  contractor  to  give  bond,  881. 
Land,  how  condemned  for  road,  381. 

Board  may  contribute  lands  for  a  canal  from  Waccamavr,  &c.,  381. 
$5,000  appropriated  for  Open-Ground  Prairie,  381. 
Forfeitures  of  land  by  persons  failing  to  pay  taxes,  381. 
Agent  of  swamp  lands  appointed  —  His  duties,  382. 
May  be  removed:  —  His  compensation  $1,000,  382. 

Board  may  procure  others  to  prosecute  suits,  and  share  the  recovery,  382. 
Presumption  of  title  in  favor  of  literary  board  and  assigns,  383. 
Board  barred  by  time,  only  when  the  State  is,  383. 
Common  Schools. 
Income  of  literary  fund,  how  distributed,  383. 

Superintendent  of  common  schools  for  the  State,  elected  by  Assembly,  383. 
For  counties,  appointed  by  county  courts,  383. 
Chairman  of  county  superintendents  appointed  of  the  body,  383. 
Chairman  to  give  bond —  His  compensation,  383. 

Clerk  of  county  court  to  be  clerk  of  board  of  superintendents  —  His  duty,  383. 
Notices  issued  by  him  served  by  sheriff,  383. 
Fund  paid  to  counties,  when  and  how,  383. 
Taxes  laid  by  county  for  school  purposes,  384. 
Collected  by  sheriff:  —  Payment  by  him,  how  enforced,  384. 
Free  negroes  not  to  be  taxed  for  schools,  384. 
School  districts  to  be  laid  off  and  recorded,  384. 
School  committees  elected  by  voters  of  members  of  house  of  commons,  384. 


688  INDEX. 

LITERARY  FUND  AND  COMMON  SCHOOLS,  {Continued). 
Common  Schools. 

Election,  when  and  how  held,  &c.,  384. 

Appe.ll  from  committee  to  board  of  superintendents,  384. 

To  be  a  corporate  body:  Its  rights  and  powers,  385. 

Sites  for  school-houses  procured  by  committee,  385. 

How  laud  condemned  for  sites,  385. 

Committee  to  report  within  one  month  number  of  children,  &c.,  386. 

Fund  distributed  equally  among  districts,  385. 

Notice  given  of  amount  due  to  each,  386. 

What  taught  in  schools,  386. 

When  children  may  attend  schools  oat  of  their  districts,  386. 

Committee  of  examination  appointed  by  superintendent,  386. 

When  and  how  often  convened  —  terra  of  office,  386. 

Teacher  to  get  certificate  of  qualification  every  j'car,  386. 

School  committee  to  employ  teacher :  His  duty,  and  how  paid,  366. 

Committee-man  not  to  be  employed,  386. 

Chairman  not  to  pay  teacher's  draft,  unless  accompanied  with  committee's  report,  386. 

Committee  not  to  keep  school  funds,  386. 

May  reckon  expense  and  draw  on  chairman  for  price  of  site,  &c.,  386. 

To  visit  schools  — may  join  with  others  to  continue  schools,  387. 

Board  may  make  all  needful  rules,  387. 

Chairman  to  keep  account  of  money  received  and  paid  out,  387. 

Examined  by  committee  of  finance,  or  clerk  of  county  court,  387. 

Shall  yearlj'  report  to  superintendent,  387. 

Copies  to  be  filed,  and  posted  up  at  court  house,  387. 

Shall  pay  over  money  to  successor :  In  case  of  default,  how  recovered,  387. 

Liable  to  12  per  cent,  damage  on  drafts  unpaid  by  him,  &c.,  388. 

Misapplication  of  school  fund,  a  misdemeanor,  388. 

Penalty  for  neglect  on  superintendent,  committee,  and  clerks,  388. 

County  solicitor  to  prosecute  for  penalties,  388. 

State  superintendent,  duties  of,  388. 

To  see  that  school  laws  are  executed,  moneys  duly  applied,  &c.,  388. 

To  sue  defaulters,  deliver  lectures,  &c.,  388. 

To  attend  literary  board,  when  directed,  388. 

To  be  furnished  yearly  by  treasurer  a  statement  of  money  paid  to  counties,  388. 

To  issue,  yearly,  instructions  and  blanks  for  returns,  388. 

To  make  annual  report  to  governor,  388. 

Report  to  be  printed,  389. 

Penalty  on,  for  neglect  of  duty,  389. 

May  be  removed  —  Vacancy  filled  by  literary  board,  389. 

Clerk  allowed  for  services  to  board,  389. 

Fees  of  clerk  and  sheriff  paid  out  of  school  fund,  369. 

Penalty  of  $500  on  chairman,  for  failing  to  report  to  superintendent,  389. 

If  county  fail  to  levy  tax  for  deaf  mutes,  &c.,  or  insane,  amount  deducted  from  its  part  of  school 
fund,  83,  90. 

88,000  out  of  literai-y  fund,  yearly  appropriated  for  deaf  mutes,  &c.,  83. 

Money  deposited  with  public  treasurer,  83. 

Accounts  of  literary  fund,  &c.,  to  pass  through  comptroller's  office,  594. 

Teachers  and  pupils  of  schools  exempt  from  working  on  roads,  541. 
LIVERY-STABLES,  tax  on.     See  Revenue,  510. 
LOCK-KEEPER,  &c.,  exempt  from  working  on  roads,  541. 
LOTTERY. 

Forbidden,  misdemeanor  —  punishment,  217. 

Sale  of  tickets  prohibited  —  misdemeanor,  217. 
LUMBER.    See  Inspections. 
MAD  DOGS. 

Penalty  and  liability  for  damages,  for  not  killing,  &c.,  390. 


INDEX. 


G89 


MAIL  CARRIERS. 

May  transport  mail  and  passengers  in  their  coaches  across  ferries,  &c.,  539. 

MAIM.    See  Crimes  and  Punishments,  205,  211. 
MANDAMUS.     See  Quo  Warranto  ami  Mandamtis. 
MANSLAUGHTER.    See  Crimea  and  Punishments. 

First  offence,  how  punished;  second  with  death,  207. 
Prior  conviction,  how  shown  on  second  conviction,  207. 
MARK.    See  Cattle  and  other  Stock. 

Altering  mark  and  mismarking  beasts,  punished  as  larceny,  214. 
Ton  timber  floated  on  Roanoke  to  be  marked,  223. 

Altering  mark  or  taking  marked  timber  with  intent  to  steal,  larceny,  224. 
MARKETS.    See  Towns. 
MARRIAGE. 

Rites  of  matrimony  celebrated  by  ministers  and  justices,  390. 
Marriage  license  issued  by  clerks  of  county  courts,  upon  bond,  391. 
Banns  published  by  ministers  and  readers,  391. 
Certificate  of  marriage  to  be  returned  to  clerk  and  recorded,  391. 
Penalty  on  minister,  justice,  or  clerk  for  neglect  of  duty,  391. 
County  solicitor  to  sue  for  penalty,  391. 

On  ministers  and  clerks,  for  marrying,  or  issuing  license,  contrary  to  law,  391. 
Between  whites  and  colored  persons  void,  misdemeanor,  218,  391. 
Penalty  for  marrying  whites  to  Indians  or  colored  persons,  392. 
Void  between  nearer  kindred  than  first  cousins,  392. 

Marrying  females  under  fifteen,  without  written  consent,  &c.,  misdemeanor,  211. 
Estates  of  such  females  secured  for  her  and  issue,  392. 

Duty  of  attorney-general  and  solicitor  to  file  a  bill  and  have  trustee  appointed  of  her  estate,  392. 
Trustee  to  give  bond;  allowed  compensation,  392. 
Persons  having  her  estate,  to  hold  it  for  trustee,  393. 
Fees  of  attorney-general  and  solicitors  in  such  cases,  393. 
License  how  obtained,  when  parents  or  guardians  reside  out  of  the  State,  393. 
Penalty  on  clerks  issuing  license,  and  on  ministers  and  justices  marry  mg  females  under  fifteen,  393. 
Females  under  14,  and  males  under  16  years,  incapable  of  contracting  marriage,  393. 
Offending  party  chvorced  not  to  marry  again,  unless,  &c.,  264. 
MARRIAGE  CONTRACTS.     See  Marriage  Settlements ;  Deeds  and  Conveyances. 

Tax  on,  510. 
MARRIAGE  LICENSE.     See  Marriage. 

Tax  on  —  see  Revenue,  511. 
MARRIAGE  SETTLEMENTS. 

To  be  registered,  else  void  as  to  creditors,  245. 
What  settlements  good  against  creditors,  245. 

When  property  settled  taljen  for  husband's  debts,  how  replaced,  245. 
MARSHAL  OF  SUPREME  COURT.     See  Supreme  Court,  200. 
MASTERS.     See  Apprentices. 

MASTERS  OF  VESSELS.    See  Quarantine  and  Health ;  Pilots. 
To  report  health  of  vessels,  491. 
Wantonly  injuring  seines,  penalty  $100,  451. 
MAYOR.    See  Towns. 

Shall  take  oaths,  588. 
MEASURES.     See  Weights  and  Measures ;  MiUs  and  Millers. 
MECKLENBURG  DECLARATION  OF  INDEPENDENCE,  1. 
MEDICINES  OF  NON-RESIDENTS,  SOLD  BY  AGENT. 

Tax  on  —  see  Hevenue,  511. 
MEMBERS  OF  ASSEMBLY'.     Sea  State  Constitution;  General  Assembly. 
MEMBERS  OF  CONGRESS.     See  Constilutim  of  the  United  States. 

Senators  in  Congress  chosen  by  General  Assembly ;  how  commissioned,  36,394. 

58* 


6S0 


INDEX. 


MEMBERS  OF  CONGRESS,  ( Conlinued). 

Kepresentatives  elected  by  the  people,  35,  394. 

Congressional  districts  allotted,  394. 

Time  and  manner  of  conducting  elections,  394.  , 

Vacancies  in  representation  how  filled,  36,  394. 

In  senate  liow  filled,  37. 

Eeturns  of  election,  how  made,  395. 

Sheriff  to  ascertain  number  of  votes,  and  make  two  statements,  895. 

Places  for  comparing  polls  by  returning  officers,  395. 

Certificates  of  election  given  by  officers  to  persons  elected,  395. 

Provision  in  case  of  a  tie  vote,  395. 

Kepresentatives  commissioned  by  governor,  396. 

Pay  of  returning  officer  for  comparing  polls,  396. 

Voting  more  than  once,  penalty  for,  396. 
MENAGERIES,  tax  on.  See  Eevenue,  514. 
MENNONISTS. 

Mennonists  —  may  affirm,  434. 
MERCHANTS,  taxed.     See  Revenue,  511. 
MERCHANT  TAILORS,  taxed.     See  Revenue,  511. 

MIGRATION  OF  FREE  NEGROES  INTO  THE  STATE.    Sea  Slates  and  Free  Negroes. 

Penalty  for  bringing  free  negro  into  the  State,  575. 
MILE-MARKS. 

Removing  or  defacing  mile-marks  a  misdemeanor,  210,  536. 
MILITIA. 

Who  to  be  enrolled,  398. 

Proviso,  as  to  persons  over  thirty -five  years  of  age,  398. 

Who  exempt  from  duty,  398. 

Members  of  fire  companies,  399. 

Also  persons  of  conscientious  scruples  against  bearing  arms,  399. 

Officers  to  enroll  and  return  exempts,  399. 

Free  negroes  not  enrolled,  except  as  musicians,  399. 

Persons  enrolled  to  equip  themselves,  399. 

Forfeiture  for  neglecting  to  equip,  400. 

Infantry,  how  divided,  400. 

Regiments,  brigades,  and  divisions,  how  distinguished,  400. 

Officers  of  infantry  — their  grside  — how  appointed,  401. 

Adjutant-general  appointed,  402. 

Governor  may  appoint  four  aids-denSamp,  402. 

Uniform  of  officers,  402. 

To  hold  commissions  three  years  and  equip  in  twelve  months  —  penalty,  40S. 

Major-generals  and  field  officers,  how  elected  and  commissioned,  403. 

How  to  resign;  who  to  be  notified  of  vacancies,  and  by  whom,  403. 

Officers  of  companies,  how  elected,  404.  * 

Officers  to  give  notice  of  their  absence,  404. 

To  deliver  to  their  successors,  money  or  papers,  404. 

Rules  of  discipline,  405. 

MeComb's  tactics  distributed  by  adjutant-general;  how,  405. 

Captain's  districts,  how  laid  off,  405.  ' 

Boundary  lines  in  regiments  of  same  county,  how  altered,  405. 

Regulations  as  to  company  musters,  405. 

Company  courts-martial,  how  to  proceed  —  Appeal  allowed,  406. 

Executions  from  —  how  and  to  whom  issued,  40". 

Penalty  on  sheriff  or  constable  for  neglect,  407. 

Company  musicians,  how  appointed;  their  privileges,  407. 

Road  hands  not  to  be  ordered  out  on  muster  day,  407. 

Captains  to  make  returns,  when,  407. 

Regimental  or  battalion  musters,  where  held;  duty  of  colonel,  407,  408. 

Penalty  for  neglect  of  duty,  408. 


INDEX.  691 

MILITIA,  {Continued). 

Penaltj-  on  officers  failing  to  attend  reviews  or  musters,  408. 

Commandants  of  regiments,  &c.,  to  give  notice  of  reviews,  &c.,  408. 

Commissioned  officers  of  regiments,  &c.,  to  exercise  day  before  review;  penalty,  408. 

Penalties  on  officers  and  privates  for  misbehaving,  409. 

Persons  on  muster  ground  failing  to  do  duty,  to  be  arrested,  409. 

Persons  attending  musters  exempt  from  arrest  in  civil  cases,  409. 

Not  to  pay  tolls,  or  ferriages,  409. 

Parents  liable  for  fines,  409. 

Regimental  and  battalion  courts-martial,  their  power  and  duties,  410. 

Duty  of  paymasters,  410. 

Oath  to  be  taken  by  oificers,  411. 

Proceedings  at  courts-martial  against  delinquents,  411. 

May  adjourn,  411. 

Duty  of  commanding  officers  as  to  fines,  411. 

Penalty  on  captains  for  neglect,  412. 

Returns  made  by  commandants  of  regiments,  412. 

Duties  of  generals  as  to  reviews,  412. 

Returns  made  by  brigadier  and  major-generals,  412. 

Penalty  on  general  officer  failing  to  review  or  muster,  make  returns,  or  be  equipped,  412. 

No  officer  deprived  of  his  commission  without  trial,  413. 

Duty  of  adjutant-general,  413. 

In  certain  cases  returns  and  orders  sent  through  post-office,  414. 

Governor  may  remit  fines  and  penalties,  414. 

Regiments  of  cavalry  how  formed,  officered,  equipped,  414. 

Troops  of  cavahy  when  to  muster;  returns  how  made,  415. 

Who  to  command  when  mustering  wfth  infantry,  415. 

Field  officers  of  cavalry  to  review  and  make  returns,  415. 

Cavalry  courts-martial  to  be  held,  415. 

Fines  of  cavalry  officers  and  privates,  same  as  of  infantry,  416. 

How  appropriated,  416.  , 

Duty  of  adjutant  of  the  regiment,  416. 

Certain  sections  of  this  chapter  to  apply  to  cavalry,  416. 

Commissions  in  cavalry,  when  gi-anted,  417. 

Volunteer  companies  of  artillery,  light-infantry,  grenadiers,  or  riflemen  may  be  formed,  417. 

May  choose  their  uniform,  417. 

To  be  under  command  of  the  officers  of  the  regiment  and  do  duty  as  other  companies,  417. 

Regiments  of  volunteer  companies  may  be  formed,  417. 

Field  officers,  how  chosen,  417. 

Captains  and  officers,  how  elected  or  appointed,  417. 

Company  to  muster  once  iu  three  months,  417. 

May  adopt  rules  for  their  own  government,  417. 

Officers  of  volunteer  regiments  to  make  returns,  417. 

Volunteers  enrolled,  not  to  return  to  infantry  without  permission,  417. 

Shall  serve  in  infantry,  until  they  equip,  418. 

Officers  of  volunteer  regiments  to  review,  418. 

Vacancies  among  field  officers  of  volunteer  regiments,  how  filled,  418. 

Certain  sections  concerning  infantry,  to  apply  to  artillery,  418. 

General  courts-martial,  how  appointed  and  held,  418. 

Officers  of,  how  to  be  selected,  418. 

Rank  of:  to  be  regularly  detailed,  419. 

How  detailed  and  constituted,  419. 

How  to  take  rank :  to  be  sworn,  420. 

Witnesses,  how  summoned :  —  How  sworn,  420. 

Rules  for  the  government  of  courts-martial,  420. 

Penalty  on  officers  failing  to  attend,  421. 

Duty  of  judge  advocate,  421. 

Proceedings  against  officers  arrested,  refusing  to  attend,  421. 

Perjury  before  courts-martial,  421. 

For  what  conduct  an  officer  may  be  cashiered,  422. 


-692  INDEX. 

MILITIA,  ( Gmtinued). 

Detacliments  of  militia  for  United  States'  sen-ice,  422. 

Substitutes  received,  422. 

Vacancies  in  detachments  under  rank  of  field  officers,  how 'filled,  422. 

A  militia-man  after  one  tour,  exempt  from  a  second  draft,  422. 

Penalty  for  refusing  to  do  duty  wlicn  ordered  by  civil  authority,  422. 

Seven  justices  may  call  out  militia  in  invasion  or  insurrection,  422. 

Duty  of  commanding  officer  on  requisition,  423. 

Officer  called  out,  to  notify  his  superior,  423. 

Superior  to  notify  the  governor,  423. 

Three  justices  may  order  out  militia  to  suppress  outlawed,  or  runaway  slaves,  423. 

Fay  of  militia  in  service,  423. 

Ptmishment  for  refusing  to  appear  on  call,  or  alarm,  423. 
for  desertion,  424. 

Field  officers  of  volunteer  regiments  in  service  of  United  States,  when  and  by  whom  elected,  424. 

Election,  when  and  how  conducted,  424. 

Certificate  of  election  furnished  to  field  officers  by  captains,  424. 

Returns,  how  made  when  regiment  rendezvous  at  different  places,  425. 

When  a  tie  in  election,  governor  to  select,  425. 

Volunteer  companies,  how  incorporated,  425. 

Privates,  by  ten  years'  service,  exempt  from  further  duty,  425. 

Commissioned  officers  exempt  by  eight  years'  service,  425. 

Arms  how  procured  when  brigadier-general  dead  or  absent,  425. 

Private  acts  in  relation  to  militia  not  repealed,  426. 

Volunteer  company,  how  to  obtain  public  arms,  481. 

Duty  of  militia  officer  receiving  arms,  482. 

Wardens  to  support  families  of  poor  militia-men  in  service,  473. 
MILLS  AND  MILLERS. 

What  shall  be  public  mills,  426. 

Owners  on  one  side  of  a  stream,  how  to  get  license  to  build  a  mill,  426. 

Nuisance  not  to  be  created,  427. 

Proceedings  when  stream  lies  between  two  counties,  427. 

Report  to  be  recorded,  and  assessed  value  paid  into  office,  427. 

Within  what  time  mill  to  be  begun  and  finished,  427. 

What  time  allowed  for  infiints,  iSsc,  to  rebuild  mills,  427. 

Millers  to  grind  according  to  turn,  427, 

What  toll  may  take,  427. 

Measures  to  be  kept  in  mills  —  false  measures  indictable,  427. 

Persons  injured  by  mills,  how  to  proceed,  427. 

Tenant  may  make  known  owner  —  petition  to  be  served  on  him,  428. 

Tenant  not  disclosing  owner,  deemed  owner,  428. 

Owner  appearing  and  giving  bail,  may  defend,  428. 

When  tenant  and  owner  become  defendants,  what  judgment  rendered,  428. 

If  against  both,  they  shall  have  contribution,  428. 

Upon  the  hearing,  what  proceedings  for  assessing  damages,  428. 

Verdict  of  jury,  how  made  and  returned,  428. 

To  bind  for  five  years,  unless,  &c.,  428. 

Notice  on  tenant  in  possession,  sufficient,  429, 

Jurors  m.ay  be  challenged,  429. 

Provision  where  damages  assessed  as  high  as  §20,  429. 

Costs  how  paid,  where  damage  under  $5,  429. 

Execution  to  issue  yearly  for  damages,  429. 

Pay  of  jurors,  429. 

On  appeals,  trial  to  be  at  bar,  429. 

Plaintiff  appealing  to  pay  costs,  if  he  fails  to  recover  more,  429. 

Bridges  kept  up  by  mill  owners,  &c.,  on  pain  of  misdemeanor,  210. 

Canal  or  dam,  not  allowed  so  as  to  injure  mills,  266. 

Owners  of  mills  and  ditches  across  roads,  &c.,  to  keep  up  bridges,  G37. 

Millers  exempt  from  working  ou  roads,  541. 


INDEX,  693 

MINKS. 

Lessors  find  lessees  of  gold  mines  worked  on  shares,  not  partners,  unless  they  so  contract,  430. 

Leases  for  mining  void,  unless  in  WTiting,  300. 

Mines  considered,  in  assessing  land  for  taxation,  519. 
MLNISTERS  OF  THE  GOSPEL. 

May  celebrate  rites  of  matrimony,  390. 

May  publish  banns,  391. 

To  return  certificate  of  marriage  to  clerk,  391. 

Penalty  $25  for  failing  to  return,  391.  • 

For  marrying  contrary  to  law,  $100,  891. 

For  man-ying  female  under  fifteen,  $1,000,  393. 
MISDEMEANORS. 

By  statute  punished  as  at  common  law,  unless  otherwise  directed,  226. 
MONEY  REMAINING  IN  THE  HANDS  OF  CLERKS  AND  OTHERS. 

Clerks,  &c.,  of  all  courts,  to  make  statement  of  moneys  remaining  in  hand  three  years,  430. 

Unless  detained  by  order  of  court,  430. 

Statement  to  be  published  at  court  house  door,  430. 

To  whom  sent,  430. 

Moneys  to  be  paid  to  certain  public  officers,  431. 

Clerk,  &c.,  faiUng  to  render  account,  to  be  sued;  penalty  $100,  431. 

"VVliere  suit  brought,  431. 

Clerks  admitting  money  and  failing  to  pay,  how  proceeded  against,  431. 

Sheriffs  to  account  for  such  moneys,  as  clerks,  431. 

May  be  used  by  the  public,  until  called  for  by  owner,  431. 
MONTH.     See  Statutes,  Cmstruction  of,  4-c.,  581. 
MONUMENT. 

Removing,  or  defacing  monuments  and  tombstones,  misdemeanor,  223. 
MORAVIANS.    See  Oaths. 
MORTGAGES,  AND  DEEDS  IN  TRUST. 

Good  against  creditors,  but  from  registration,  245. 

Register  to  indorse  day  of  receipt,  245. 

And  register  on  delivery,  245,  498. 

Of  real  estate,  registered  in  the  county  where  situate,  245. 

Where,  of  personal  estate,  245. 

Trust  estates  liable  to  execution,  2T5. 

Purchaser  to  hold  discharged  of  trust,  276. 

Right  of  redeeming  real  estate  liable  to  execution,  276. 

Slieriff's  deed  to  refer  to  mortgage,  &c.,  276. 

Mortgage  of  personalty  to  be  redeemed  in  two  years  after  forfeiture,  37^ 

Proviso,  that  mortgagee  may  foreclose,  374. 

Rights  of  mortgagor  and  mortgagee  presumed  settled,  after  ten  years,  375. 

Tax  on  mortgages  and  trust  deeds,  510.     , 
MUSICAL  INSTRUMENTS,  taxed.    See  Revenue,  510. 
MUSTERS.     See  Militia. 

Not  to  be  on  day  of  election,  308. 

Process  not  to  be  served  on  day  of  muster,  168. 
MUTE. 

Plea  entered  for  defendant  standing  mute,  233. 
MUTES.    See  Asylums. 

NAMES. 

Names  may  be  changed  by  superior  courts,  432. 
NATURALIZATION. 

Laws  of  congress  concerning,  625. 
NAVIGATION.    See  PihU. 

Obstructing  by  felling  trees,  &c.,  misdemeanor,  531. 

Draws  in  bridges  over  navigable  waters,  to  be  kept  by  railroad  companies,  539. 


694 


INDEX. 


NAVIGATION,  ( Omlinued). 

Owners  of  bridges  to  construct  draws,  penalty,  539. 

Counties  to  erect  draws  where  necessary,  639. 
NE  EXEAT,  writ  of.     See  Courts  of  Equity. 

NEGOTIABLE  SECURITIES.    See  Bills,  Boncts,  and  Promissory  Notes;  Crimes  and  PunislmenU. 
NETS.    See  Oysters,  and  other  Fish. 
NEW  TRIAL. 

May  be  granted  to  defendant  conTicted  of  crime,  234. 

When  and  how  obtained,  where  justice  renders  judgment  in  party's  absence,  364. 
NON-RESIDENTS. 

Proceedings  against  in  equity  —  see  Courts  of  Equity, 
at  law— see  Attachments. 

How  notified  in  petitions,  179. 

Forbid  to  fish  for  sale  in  certain  waters ;  proviso,  and  penalty  of  SlOO,  450. 

Non-resident  creditors,  bow  notified  by  insolvent  debtors,  338. 
NONSUIT. 

Not  allowed  after  verdict,  182. 

In  what  cases  adjudged  for  non-production  of  books,  &c.,  177. 
NOSTRUMS  OF  NON-RESIDENTS,  sold  by  agent  taxed  — see  Revenue,  611. 
NOTARIES. 

Appointed  by  governor  —  qualified  in  county  court,  432. 

Duplicate  commission  issued,  one  part  filed  in  office  of  county  court,  432. 

Clerks,  and  clerks  and  masters  may  act  and  certify  under  seal  of  ofiice,  432. 

Fees  of  notaries,  654. 
NOTICES. 

Constable  to  execute  notices  issued  by  justice,  130. 

His  return  evidence  of  service,  130. 

In  legal  proceedings  to  be  served  by  sherifi',  how,  183. 

Return,  evidence  of  service,  184. 

When  executed,  returned  on  demand  to  the  party,  184. 

Served  by  coroner,  when  sheriff  interested,  184. 

Failing  to  serve  or  making  false  return,  penalty,  184. 
NUISANCES.    See  Quarantine  and  Health. 

Canal  or  dam  not  allowed  so  as  to  create  a  nnisance,  256. 

Nor  mills,  427. 

What  deemed  nuisance  in  seaport  towns,  penalty,  494. 

Commissioners  of  towns  may  abate  nuisances,  589. 
NUMBER. 

Singular  and  plural,  580. 

OATHS. 

How  administered,  433. 

Persons  scrupulous  of  laying  hands  on  Scripture,  sworn  with  uplifted  hand,  433. 

Quakers,  Moravians,  Dunkers,  Mennonists  aSimied,  434. 

To  support  constitutions  of  United  States  and  this  State,  to  be  taken  by  all  officers,  47,  484. 

Officers  to  take  the  oaths  before  acting  under  penalty  of  S500  and  ejection,  444. 

Form  of  oath  to  support  the  constitution  of  the  United  States,  436. 

1.  Of  administrator,  435. 

2.  attorney  at  law,  436. 

3.  attorney-general  and  solicitors  for  State  and  county,  436. 

4.  book  debt,  436. 

6.        book  debt  oath  for  executor  or  administrator,  436. 

6.  cleric  and  master  in  equity,  435. 

7.  clerk  of  supreme  court,  436. 

8.  superior  court  of  law,  436. 

9.  court  of  pleas  and  quarter-sessions,  436. 
10.        eommissioners  allotting  a  year's  provision,  436. 


INDEX.  695 


OATHS,  { Continued). 

11.  Of  commissioners  dividing  and  allotting  real  estate,  •136. 

12.  of  wrecks,  436. 

13.  comptroller,  437. 

14.  constable,  437. 

15.  coroner,  437. 

16.  entry-taker,  437. 

17.  executor,  437. 

18.  finance  committee,  437. 

19.  governor,  438. 

20.  inspector  of  flour,  438. 

21.  tobacco,  438. 

22.  other  articles  than  tobacco  and  flour,  438. 

23.  judge  of  the  supreme  court,  439. 

24.  superior  court  of  law  and  equity,  409. 

25.  grand-jury  —  foreman,  439. 

26.  jurors,  440. 

27.  jury  —  officer  of,  440. 

28.  jury,  petit  —  officer  of,  440. 

29.  jury,  in  a  capital  case,  440. 

30.  in  criminal  case,  not  capital,  440. 

31.  in  civil  cases,  440. 

32.  laying  off  dower,  440. 

33.  to  assess  damages  for  overflowing  land,  440. 

34.  to  lay  off  roads  and  assess  damages,  441. 

35.  justices  of  the  peace,  441. 

36.  processioner,  442. 

37.  public  treasurer,  442. 

38.  ranger,  442. 

39.  register,  442. 

40.  secretary  of  State,  442. 

41.  sheriff,  442. 

42.  standard  keeper,  442. 

43.  stray  valuers,  443. 

44.  surveyor  for  the  county,  443. 

45.  tobacco  picker,  443. 

46.  trustee  for  a  county,  443. 

47.  witness  to  depose  before  the  grand-jury,  443. 

48.  in  a  capital  trial,  443. 

49.  on  a  traverse,  443. 

50.  in  civil  cases,  443. 

51.  to  prove  a  will,  444. 

Deputies  sworn,  may  administer  oaths  wherever  their  principals  may,  414. 

Oath  of  sheriff  on  settlement  with  comptroller,  527. 

On  being  allowed  insolvent  taxables,  527. 

Of  board  to  assess  value  of  land,  619. 

Of  listers  of  taxables,  516. 

Insolvent  debtor  filing  schedule,  334. 

When  schedule  not  filed,  333. 

Of  ofiicers  of  militia,  411. 

Of  officers  of  court-martial,  420. 

Of  witness  before  court-martial,  420. 

Commissioners  of  affidavits  to  take  oath,  125. 

Of  towns  also,  588. 

Of  navigation  also,  466. 

Of  wrecks  also,  616. 

Mayors  of  towns,  likewise,  588. 

Wardens  of  the  poor  also,  470. 

Clerk  and  master  may  administer  oaths  in  certain  cases,  124. 

Commissioners  of  navigation,  too,  462. 

Rangers,  also,  584. 


696  INDEX. 

OFFICERS,  CIVIL. 

Who  may  be  impeached,  25. 

Failing  to  discharge  their  duties,  guilty  of  misdemeanor,  225. 
OFFICES. 

Two  lucrative  offices  not  to  be  held  at  one  time,  &o.,  18. 

Who  disqualified  to  hold  office  under  the  State,  and  ineligible,  &c.,  27. 

None  to  hold  office  contrary  to  law,  under  penalty  of  $200, 444. 

Contracts  to  purchase  void,  444. 

Sheriffs,  &c.,  sworn  into  office,  considered  rightly  in,  until,  &c.,  444. 

Sherifis,  clerks,  clerk  and  master,  and  registers,  to  hold  till  successor  appointed,  444. 

All  officers  to  take  oaths  before  acting;  penalty  S509  and  ejection,  444. 

Clerk  and  master  to  keep  his  office  within  one  mile  of  court  house,  penalty  $100, 124. 

Offices  of  clerks  of  county  and  superior  courts  kept  at  court  house,  122. 

Clerk  of  county  court  when  removed,  122. 

Baying  or  selling  offices,  misdemeanor  —  punishment,  208. 

Entry-taker  to  keep  his  office  at  court  house,  263. 

Justice  may  accept  office  under  United  States,  365. 

Ecister's  office  kept  where  county  court  shall  direct,  49S, 

Days  of  attendance  may  he  fixed,  &c.,  498. 

Sheriff  not  deemed  in  office  till  bond  given,  559. 

How  removed,  559. 

Not  to  farm  his  office,  561. 

Offices  in  capitol  furnished  by  board  of  public  buildings,  555. 

Office  hours  of  secretary  of  State,  657. 
of  treasurer,  594. 

OFFICIAL  BONDS. 

Suits  on  bonds  of  clerks,  &c.,  brought  by  party  injured,  445. 

Declaration  to  show  relator ;  or  party  may  sue  in  case,  445. 

Sheriff  and  constable,  when  liable  for  whole  debt  put  in  their  hands,  445. 

Remedy  before  justice,  against  officers  neglecting  to  pay  over  moneys,  446. 

Summary  remedy  in  court  against  them,  446. 

Damages  of  12  per  cent,  on  money  detained,  446. 

Names  of  justices  present  at  qualification  of  sheriff  and  others  recorded,  446. 

Such  justices  failing  to  take  bond,  bound  as  sureties,  446. 

Copy  of  record  evidence  against  them,  446. 

Penalty  on  officers  for  not  giving  bond  before  acting,  446. 

Irregularity  in  taking  or  in  form  of  bonds,  not  to  invalidate,  447. 
ORDINARIES  AND  INNS. 

License  to  keep,  how  obtained,  447. 

Bond  given -»- its  condition,  448. 

Names  of  justices  taking  bond  recorded,  448. 

Rates  of  charges  established  by  justices,  448. 

Duty  of  ordinary- keepers,  448. 

No  ordinary  keeper,  or  retailer  to  credit  for  liquors  over  ten  dollars,  446. 

Penalty  on  keepers,  entertaining  slaves  or  sailors,  &c.,  448. 

License  to  retail  spirituous  liquors,  how  obtained,  448. 

Houses  of  private  entertainment  excepted  from  this  chapter,  448. 
ORPHANS.    See  Apprentices ;  Guardian  and  Ward. 
ORPHANS'  COURT.     See  Guardian  and  Ward,  819. 
OUTLAWED  SLAVES.    See  Shees  and  Free  Negroes. 
OVERSEERS. 

Leaving  employment  to  forfeit  wages,  449. 
OVERSEERS  OF  ROADS  AND  RIVERS. 

Appointed  yearly  by  county  court,  630,  534.  i 

For  their  duties  and  liabilities  —  see  Roads,  Ferries,  and  Bridges ;  Bivers  and  Creeks. 

Overseers  of  roads  and  rivers  neglecting  duty,  guilty  of  misdemeanor,  210. 

Incorporated  towns  may  appoint  overseers  of  streets,  589. 


INDEX.  697 

nWXEESHIP. 

Of  property  held  in  common,  how  stated,  231. 

How,  in  indictment  for  stealing  or  obliterating  records,  &o.,  208. 
OYKK  AND  TERMINER. 

In  case  of  insuiTcction  court  of  oyer  and  terminer  commissioned,  572. 

Judge  may  continue  causes  to  regular  term,  573. 

Officer  prosecuting  paid,  573. 
OYSTERS,  AND  OTHER  FISH. 

Oysters  not  to  be  transported  without  the  State;  penalty;  exceptions,  449. 

Duty  of  magistrates  in  apprehending  offenders,  449. 

Penalty  for  using  dragnets  to  catch  terrapins  in  Pamlico  Sound,  450. 

Or  instruments,  except  tongs,  to  catch  oysters,  unless,  &c.,  450. 

Net,  &c.,  not  to  be  used  in  half  mile  of  marshes,  between  Croatan  and  Pamlico  Sound,  450. 

Non-residents  forbid  to  fish,  for  sale,  in  waters  of  the  State  —  Proviso,  450. 

Penalty  therefor,  $100,  450. 

Nets  in  Pamlico  Sound,  in  what  direction  to  be  set,  450. 

Fisliing  stakes  in  Pamlico  and  Albemarle  Sounds,  &c.,  to  be  removed  by  June,  451. 

Masters  of  vessels  wantonly  injuring  seines  or  nets,  penalty  on,  451. 

Fish  offal  not  to  be  cast  into  navigable  waters,  &c.,  451. 

Penalty  for  setting  nets  across  navigable  streams,  or  obstracting  fish,  451. 

For  erecting  stands,  &c.,  in  waters  required  to  be  left  open  for  fish,  451. 

Or  for  not  keeping  open  slopes,  451. 

Offences  in  this  chapter,  indictable,  451. 

One  fourth  of  stream  left  open  for  passage  offish,  when,  531. 

PARENT. 

When  to  inherit  from  child  —  see  Descents,  249,  250. 

Mother  of  bastard  child  its  next  of  kin,  when,  370. 
PARTITION. 

Tenants  in  common  may  have  partition  by  court — Proceedings,  452. 

When  land  lies  in  different  counties,  made  by  superior  court,  452. 

Division  to  be  equ.al,  if  practicable,  453. 

Sums  charged  on  minors  not  payable  till  of  age,  453. 

To  bear  interest,  and  guardian  to  pay  when  assets,  453. 

Commissioners  and  costs  paid,  as  may  be  decreed,  453. 

Sale  decreed  to  prevent  injury  by  actual  partition,  453. 

Also,  when  land  required  for  public  purposes,  453. 

Proceeds  secured  for  infants, y'eme  covei'is,  tioii  compos,  &c.,  453. 

Sales,  where  made,  453. 

When  there  is  dower  court  may  apportion  its  value,  453. 

Proceedings  where  lands  lie  partly  in  this  and  another  State,  454. 

Court  may  decree  partition,  454. 

Commissioners  appointed — their  duty  in  making  partition,  454. 

What  final  decree  court  may  make,  455. 

Decree  for  partition  in  another  State,  when  enforced  in  this,  455. 

Court  to  judge  if  such  State  has  passed  a  like  law,  456. 

Time  for  infants, ye7ne  coverts,  &c.,  to  except  to  decree,  456. 

Pay  of  commissioners  in  such  cases,  457. 

Personal  property,  partition  of,  how  made,  457. 

When  sold  for  partition,  457. 

Infants  to  have  guardians  on  partition,  457. 

Pay  of  commissioners  acting  in  the  State,  457. 
PASSING  COUNTERFEIT  COINS,  OR  FORGED  NOTES,  STOCKS,  CERTIFICATES,  &c.    See 

Crimes  and  Punishments. 
PATENT  MEDICINES. 

Tax  on  peddlers  of,  510. 
P,\TROL. 

County  court  may  appoint  patrol  committee,  who  shall  employ  a  patrol,  45S, 

59 


698 


INDEX. 


PATROL,  ( QmUmied). 

County  courts  may  also  appoint  a  patrol,  45S. 

Committee  refusing  to  act,  penalty  on,  458. 

Duties  and  powers  of  patrol,  458. 

Eules  for,  prescribed  by  county  court,  458. 

Committee  may  discharge  patrol  and  appoint  others,  458.  f^' 

Patrol  refusing  to  act,  penalty  on,  459. 

Pay  of  patrol ;  tax  therefor,  459. 

Exempt  from  working  on  roads,  541. 

Towns  may  appoint  town  patrol,  689. 
PAUPER.    See  Poor;  Poor  Persons. 
PAYMENT. 

Payment  or  satisfaction  may  be  pleaded  in  suits  on  bonds  and  judgments,  180. 

Also  after  day  of  payment,  in  suits  on  bonds  conditioned  to  be  discharged  by  less  sum,  180. 

Penal  bonds  after  suit  may  be  discharged  by  payment  into  court,  181. 

Judgments,  contracts,  &c.,  presumed  paid  after  ten  years,  375. 
PEDDLERS. 

Tax  on  —  see  Revenue,  513. 

License  to  peddle,  when  necessary,  and  how  to  be  obtained  —  see  Revenue,  513. 

Peddling  without  or  failing  to  show  license,  a  misdemeanor,  211. 

Peddling  patent  medicines,  razor  straps,  &c.,  &c.  taxed  S5  for  each  county,  510. 
carriages  not  of  the  manufacture  of  the  State,  $30  for  each  county,  512. 
other  articles,  except,  &o.,  without  license,  $100  a  year  for  each  county,  513. 
with  hcense,  $30  a  year  for  each  county,  513. 
proviso  as  to  peddling  on  the  south  side  of  Albemarle  sound,  &c.,  513. 

Two  not  to  peddle  under  one  license,  612,  513. 

Deemed  peddlers  though  they  procure  houses  temporarily,  513. 

Free  negro  not  to  hawk  or  peddle,  without  license,  577. 
PENAL  BONDS.    See  Payment;  Pleading;  Courts,  County  and  Superior. 
PENALTIES. 

Not  given  specially,  recovered  by  any  one,  236. 

Recovered  in  name  of  State,  when,  236. 

Imposed  to  enforce  collection  of  revenue,  recovered  by  treasurer  on  motion,  529. 
PENSIONS. 

Allowed  to  persons  disabled  in  militia  service,  459. 

Mode  of  procuring  the  same,  459. 
PERJURY.    See  Crimes  and  Punishments ;  Cnniinal  Proceedings ;  Indictment. 

Persons  convicted  of,  rendered  infamous,  212. 

Before  courts-martial  —  see  Militia,  421. 

Slaves  and  free  negroes  guilty  of,  punished  as  freemen,  578. 
PETITION. 

May  be  filed  in  vacation  and  capias  issue  on  affidavit,  179. 

Publication  for  non-residents,  when  and  how  made,  179. 

Accounts  in  petition  audited  and  settled  under  order  of  court,  179. 

Depositions  read  in  petitions,  179. 
PETITION  FOR  REHEARING.    See  Bilk  of  Review. 
PHYSICIANS. 

And  surgeons  summoned  to  assist  at  inquest,  132. 
PILLORY.    Sec  Court  Houses;  Prisons,  .fc. 
PILOTS. 

Commissioners  of  navigation  for  Cape  Fear  river  yearlj-  elected  by  town  of  Wilmington,  461. 

How  styled;  to  fill  vacancies  and  appoint  a  clerk,  461. 

To  establish,  &c.,  the  fees  and  charges  of  pilots,  461. 

To  have  authority  concerning  navigation  of  the  river,  &c.,  461. 

Harbor  master  appointed,  461. 

Pilots'  stations  and  pilotage  regulated  by  commmissioaers,  461. 

Pilots  appomted  by  board,  461. 


INDEX.  699 

PILOTS,  {ContmueiJ). 

Bond  given  by  pilots,  462. 

Disputes  between  masters  and  pilots  decided  by  board,  462. 

Warrant  for  pilotage,  forfeiture,  &c.,  may  be  issued  by  one  of  the  commissioners,  462. 

Jurisdiction  not  to  exceed  S60,  462. 

May  summon  witnesses  and  administer  oaths,  462. 

Stay  of  execution  not  allowed,  462. 

Appeal  lies  from  judgment  of  commissioners,  462. 

Notice  given  when  rates  of  pilotage  are  altered,  463. 

Number  of  boats  prescribed  for  pilots,  463. 

Rights  of  pilots  as  to  Main  and  New  inlet  bars  of  Cape  Fear,  463. 

Apprentices  to  be  kept  by  pilots,  463. 

Penalty  for  not  attending  when  requested;  proviso,  463. 

Pilots  refused,  entitled  to  full  pilotage,  463. 

To  one  third  fees  only  in  certain  cases,  464. 

Pilotage,  when  vessel  deepened  or  hghtened,  464. 

Vessels  of  what  burden  and  where,  exempt  from  pilotage,  464. 

Of  60  tons  coming  into  Cape  Fear  river  for  coal  if  they  hoist  a  prescribed  flag,  464. 

Outward  bound  coal  vessels,  in  like  manner  exempt,  464. 

Penalty  on  captains,  &c.,  falsely  hoisting  flag  of  coal  vessels,  464. 

Penalty  on  coal  vessels  for  not  raising  flag,  464. 

Pilotage  of,  not  to  be  altered,  &c.,  465. 

Commissioners  of  navigation  yearly  appointed  for  Newbem,  Edenton,  and  Washington,  465. 

Mode  of  appointment ;  vacancies,  how  filled,  465. 

Powers  of  commissioners,  465. 

Commissioners  of  Washington  a  body  corporate,  their  style  and  powers,  465. 

May  erect  houses  for  a  quarantine  hospital,  465. 

Employ  phj'sicians,  &c.,  465. 

Board  for  Ocracock  to  be  continued,  466. 

To  meet  three  times  a  year  at  Ocracock,  466. 

To  appoint  pilots  for  the  bar,  swashes,  &c.,  466. 

To  keep  an  ofllce  at  Ocracock,  466. 

Fees  for  branches  paid  by  pilots,  how  disposed  of,  466. 

Vacancies,  how  filled,  466. 

Commissioners  to  keep  a  journal,  and  take  oath,  466. 

Branches  to  expire  in  three  years,  466. 

Commissioners  of  navigation  for  Carteret,  Onslow,  and  Hyde,  466. 

Those  of  Carteret,  a  board  for  Old  Topsail  inlet,  &c.,  466. 

Of  Onslow,  a  board  for  Bogue  inlet,  &c.,  466. 

Of  Hyde,  a  board  for  Hatteras  inlet,  &c.,  466. 

Vacancies,  how  filled,  466. 

Powers  of  boards,  466. 

Bonds  to  be  given  by  pilots,  467. 

To  have  a  telescope,  or  spy-glass,  467. 

Removed  for  misbehavior,  467. 

Penalty  for  acting  after  removal,  467. 

Notice  of  removal  published,  467. 

Penalty  for  .acting  as  pilot,  without  license,  467. 

Pay  to  pilots  for  detention,  467. 

Ptiy  when  driven  off  the  coast  after  boarding,  467. 

Penalty  for  neglecting  to  go  to  a  vessel  showing  a  signal,  &c.,  467. 

When  refused,  to  have  pay,  468. 

No  pilotage  on  vessels  under  60  tons;  exception,  468. 

Rates  of,  for  Edenton,  Washington,  Newborn,  Ocracock,  and  Hatteras,  468. 

H.orbor  masters  and  clerks  appointed  by  boards,  468. 

Rates  of  pilotage  at  Old  Topsail  inlet,  468. 

At  Bogue  inlet,  468. 

Fees  for  pilotage  annexed  to  branches,  469. 

Penalty  when  a  slave  acts  as  pilot,  469. 

Boards  to  designate  where  ballast,  trash,  &c.,  miiy  be  cast,  469. 


700  INDEX. 

PILOTS,  {Continued). 

Penalty  for  throwing  ballast,  stone,  &c.,  into  navigable  water,  469. 

Ou  pilots  for  not  informing  thereof,  469. 

Penalty  for  pulling  down  beacons,  469. 

Penalties  and  fines,  how  disposed  of,  469. 

Annual  report  made  thereof,  470. 
PITCH.     See  Inspecliom,  350,  361. 
PLANK-EOADS. 

Land  for,  how  condemned.    See  Internal  Improvement 

Injuries  to.    See  Crimes  and  PunishmenU,  222. 
PLATE,  tax  on.    See  Revenue,  510. 
PLAYERS  ON  MUSICAL  INSTRUMENTS  FOR  REWARD,  tax  on.     See  Rttenue,  814. 

PLEADING. 

Plea  in  abatement  received  only  on  affidavit  or  proof,  170. 

As  many  pleas  as  necessary  may  be  pleaded,  170. 

Bail  shall  not  plead  non  est'factum,  but  on  oath,  105. 

Matters  of  defence  good  for  principal,  good  for  bail,  107. 

What  to  be  set  forth  in  information,  137. 

Plea  since  the  last  continuance  no  waiver  of  former  plea,  170. 

Matter  arising  after  issue  in  equity  pleaded  ^uis  darrein,  190. 

In  ejectment  plea  of  entry  by  plaintiff  since,  &c.,  nof  allowed  without  affidavit,  and  payment  of 
costs,  167. 

On  what  terms  defendant  may  plead,  when  plaintiff  in  ejectment  deposes  that  defendant  entered 
as  his  tenant,  166. 

Set-off  may  be  pleaded  in  case  of  mutual  debts,  176. 

In  trespass,  q.  c.  f.,  defendant  may  disclaim,  and  plead  tender,  &o.,  177. 

Payment  may  be  pleaded  in  suits  on  bonds  and  judgments,  180. 

Declaration  on  official  bond  must  show  the  relator,  445. 

Pleadings  in  suits  on  penal  bonds,  171. 

To  plea  of  former  judgment  in  penal  suits,  plaintiff  may  reply  fraud,  180. 

For  pleading  by  executors,  &c.,  —  see  Executors  and  Administrators. 
POLL-TAX.    See  Revenue. 

Capitation  tax  to  be  equal,  27. 

Free  males  over  twenty-one  and  under  forty-five,  taxable,  27. 

Slaves  over  twelve  and  under  fifty,  27. 

POOR. 

Wardens  elected  by  a  majority  of  justices,  470. 

To  be  notified  by  sherifi",  &c.,  470. 

To  serve  three  years  and  take  oath,  470. 

Court  of,  held  at  court  house,  471. 

Clerk  and  treasurer  to  be  appointed  —  treasurer  to  give  bond,  471. 

Penalty  on  clerks  and  sheriffs,  &c. :  On  wardens  refusing  to  qualify,  471. 

Vacancies,  how  filled,  471. 

Three  wardens  may  call  a  court;  penalty  for  not  attending,  471. 

Wardens  to  keep  a  joiimal  of  proceedings,  471. 

To  publish,  yearly,  an  account  of  receipts  and  expenditures,  471. 

Tax  for  the  poor  laid  by  majority  of  justices,  471. 

Wardens  going  out  of  office  to  settle  with  successor,  on  pain,  &c.,  471. 

Summary  mode  of  recovering  money  detained,  471. 

Poor-houses  may  be  established,  472. 

and  poor  to  be  under  control  of  wardens,  472. 
Property  of,  exempt  from  tax,  472,  506. 
Legal  settlements  how  acquired,  472. 

(1.)  By  one  year's  residence,  472. 

(2.)  Married  women  to  have  the  settlement  of  their  husbands,  if,  &c.,  472. 

(3.)  Legitimate  children,  that  of  their  father  or  mother,  &c.,  472. 

(4.)  Illegitimate  children,  that  of  their  mother,  &c.,  472. 

(5.)  Settlements  to  continue  till  others  are  acquired,  472. 
Pauper  may  be  removed  to  his  settlement,  unless  eick,  &c.,  472. 


INDEX.  701 

POOR,  {Continued). 

All  charges  to  be  paid  by  the  county  of  his  settlement,  473. 

Housekeepers  entertaining  paupers  to  give  notice,  473. 

Wardens  to  support  families  of  poor  militia-men  in  service,  473. 

Disabled  slaves  provided  for  by  wardens;  owner  to  repay,  473. 

If  owner  dead,  his  estate  liable  in  liands  of  guardian,  executor,  &c.,  473, 

Such  slave  may  be  removed  to  owner^s  county,  473. 

Two  wardens  may  act  in  case  of  slaves,  474. 

Proceedings  when  owner  about  to  remove,  and  leave  infirm  slaves,  474. 

Stock  of  slaves  to  be  taken  by  wardens,  474. 

Penalties  imposed  in  this  chapter  to  be  for  the  poor,  474. 

County  court  may  pay  wardens,  474. 
POOR  PERSONS. 

May  sue  without  secixrity,  165. 

To  have  counsel  assigned,  165. 
PORK.    See  Tiispeclions,  349. 

PORT  PHYSICIANS.    See  Quarantine  and  Health. 
POSSESSION.     See  Limitations. 

Adverse  possession  of  personal  estate  for  three  years  to  give  title,  375. 
POSTAGE.    See  Secretary  of  State. 
POST  MORTEM  EXAMINATION. 

Prosecuting  officer  may  direct ^si  mortem  examination,  236. 
POWER  OF  ATTORNEY.    See  Deeds  and  Conveyances. 

To  be  produced  by  attorney  claiming  to  appear,  &c.,  unless,  &c.,  171. 
POWERS. 

Under  wills,  not  prejudicing  creditors,  to  be  pursued,  285. 

Land  devised  to  be  sold  by  executors,  &c.,  by  whom  to  be  sold,  289. 

Authority  of  public  officers  to  be  exercised  by  majority,  unless,  &c.,  681. 

Powers  executed  by  will  —  see  Wills  and  Testaments. 
PRACTICE.     See  Gmrls,  County  and  Superior ;  Courts  nj"  Equity ;  Cnmiaai  Proceedings. 

Criminal  proceeding  to  be  .as  heretofcre,  unless  altered,  230. 
PRESIDENT  AND  VICE-PRESIDENT    OF   THE  UNITED  STATES.     See  Electors  of  President 

and  Mce-President. 
PRESUMPTION.     See  Payment. 

Paj'ment  of  bonds,  &c.,  after  ten  years,  375. 

Rights  of  mortgagor  and  mortgagee  presumed  settled  after  ten  years,  375. 

Titles  of  railroad  and  other  companies  to  estate  condemned  for  right  of  way,  &c.,  not  presumed  to 
have  been  conveyed,  375. 

Order  of  court,  to  make  footways  and  hollow  bridges  presumed  after  ten  years'  use,  536. 
PRETENDED  RIGHTS.     See  Champerty. 
PRINCIPAL.     See  Surety  and  Principal. 
PRISONERS. 

Keepers  of  jails  to  receive  and  keep  prisoners  of  United  States,  475. 

To  have  same  fees  as  for  State  prisoners,  475. 

When  jail  destroyed,  prisoners  sent  to  jail  of  adjoining  county,  475. 

If  no  jail,  or  jail  unsafe,  court  may  commit  In  like  manner,  475. 

Sheriff,  &o.,  may  likewise,  476. 

Jailer  of  such  county  liable  for  escape,  476. 

SherilT  apprehending  escape,  how  to  obtain  guard,  476. 

Guard  to  be  paid,  476. 

Prisoners  for  crime  to  pay  jail  charges,  476. 

Expense  of  guarding  and  removing  prisoners,  &c.,  by  what  county  paid,  476. 

Prisoners  may  buy  necessaries,  477. 

Injuring  prisoners,  penalty  for,  477. 

Jailer  to  cleanse  jail,  furnish  diet,  &o.,  477. 

Blankets  and  bedclothing  provided  for  prisoners,  477. 

59* 


702  INDEX. 

PRISONERS,  {Conlinued). 

Blankets,  &c.,  used  by  slaves,  477. 

Prison  bounds  for  health,  &c.,  laid  out  by  county  court,  477. 
Bond  to  keep  bounds,  477. 

Bond,  in  criminal  cases  returned  to  court  and  deemed  a  recognizance,  477. 
In  civil  cases  on  mesne  process,  to  stand  as  security  for  final  judgment,  478. 
In  cases  of  imprisonment  on  final  process,  deemed  a  judgment,  478. 
On  breach  of  bond,  excluded  from  bounds,  478. 
Prisoners,  how  transferred  to  sheriff's  successor,  478. 
To  be  confined  in  proper  apartments,  478. 
Penalty  for  otherwise  confining  them,  478. 
PRISONS.     See  Court  Uouse;  Priions,  cj-c. ;  Pnsoners. 

Breaking  prison,  a  misdemeanor,  206. 
PRIVATE  ENTERTAINMENT. 

Houses  of,  may  be  kept  without  license,  448. 
PRIVATE  SECRETARY.    See  Governor  and  CounciL 
His  salary,  B43. 
His  fees,  645. 

His  fees  from  corporations  incorporated  by  letters  patent,  136. 
PROBATE  OF  DEEDS.    See  Deeds  and  Conveyances. 
PROBATE  OF  WILLS.     See  Wills  and  Testaments. 

County  courts  to  have  jurisdiction  of  the  probate  of  wills,  609. 
PROCESS. 

Suits  at  law  against  corporation  commenced  by  summons— in  equity  by  subpcEna,  137. 
On  what  officer  or  member  to  be  served,  137. 
Criminal  process  to  issue  and  be  returnable  at  any  time,  230. 
Day  of  issuing  process  to  be  noted  thereon,  165. 
Day  of  receipt  and  execution  by  officer  to  be  indorsed,  165. 
Penalty  on  clerk  or  officer  for  neglect,  165. 

Security,  unless  in  suit  by  pauper,  to  be  given  before  issuing,  165. 
Penalty  $200  on  clerk  for  issuing  without  security,  165. 
Writs  in  same  suit  may  issue  to  several  counties,  at  the  s'ame  time,  166. 
Process,  subpcenas,  &o.,  when  returnable,  and  how  long  before  court  to  be  executed,  167. 
Execution  not  to  issue  after  year  and  day  on  judgment,  unless  revived,  181. 
Seal  of  court  not  put  to  process  issued  to  the  county,  &c.,  183. 
Petition  may  be  filed  in  vacation ;  cajnas  issued  on  affidavit,  179. 
No  process  except  subpcenas  returnable  to  special  term,  161. 
On  sheriff''s  return  that  defendant  resides  in  another  county,  alias  to  issue,  168. 
Process  directed  to  sheriff  of  adjoining  county,  when,  168. 
Not  to  be  executed  on  Sunday,  days  of  election,  or  muster,  168. 
Nor  on  jurors  or  witnesses,  168. 

How  executed  on  absent  executor  not  having  given  bond,  293. 

Sheriffs  of  Hyde  and  Carteret  may  execute  on  shipboard,  between  Ocracoch  and  Portsmouth,  560. 
Sheriffs  shall  execute  all  process,  &c.,  from  courts,  560. 
To  give  receipts  for  process,  which  shall  be  evidence,  &c.,  561. 
PEOCESSIONER.    See  Processioning. 
PROCESSIONING. 

Processioners  of  land  appointed  by  county  court,  479. 
Oath  and  term  of  office,  442,  479. 
Fees  of  processioner,  663. 

Owners  to  give  notice  and  processioner  to  have  a  copy,  479. 
Lands  partly  in  two  counties,  processioned  by  processioner  of  cither,  479. 
Certificate  to  be  made  and  returned  to  clerk:  To  be  recorded,  479. 
When  line  disputed  and  processioner  forbid  to  proceed,  he  shall  report  to  court,  479. 
Five  freeholders  then  appointed  with  him,  479. 
Person  having  land  twice  processioned,  deemed  owner,  480. 
Who  not  bound  by  processioning,  480. 
PROMISSORY  NOTES.    See  Mis,  Bonds,  and  Promissory  Xotet. 


INDEX. 

PROTEST.    See  Bills,  Bonds,  <fc. ;  Notaries. 

Of  notary,  evidence  of  demand,  112. 

For  non-acceptance  of  inland  bills,  orders  in  writing,  &c.,  necessary  before  suit,  111. 

Damages  on  protested  bills.  111. 
PROVISIONS.    See  Inspections. 
PUBLIC  ARMS. 

To  be  deposited  in  public  arsenals,  except,  &c.,  480. 

Keeper  of  arsenals  appointed  by  adjutant-general,  481. 

At  Newbern  by  the  governor,  481. 

Volunteer  companies,  how  to  obtain  arms,  481. 

A  town,  or  senior  colonel  may  on  giving  bond,  481. 

Distributed  on  invasion  or  insurrection,  481. 

Duty  of  militia  officers  receiving  arms,  482. 

Not  keeping  arms  in  order,  penalty  for,  482. 

Selling,  buying,  or  embezzling  public  arms,  misdemeanor,  482. 

On  death,  &c.,  of  a  private,  his  arms  delivered  to  successor,  482. 

Officers  to  demand  public  arms  in  possession  of  any  not  entitled,  482. 

Detachments  in  service  furnished  with  arms,  when,  483. 

How  procured  when  brigadier-general  dead  or  absent,  425. 
PUBLIC  BUILDINGS.    See  Seat  of  Government. 

Malicious  burning  of  State  house  or  State  offices,  felony,  203. 
PUBLIC  DEBT. 

Bonds  and  certificates  of  debt  issued  by  the  State,  to  be  registered,  483. 

To  be  transferable:  mode  of  transfer,  484. 

In  what  manner  State  bonds  shall  be  executed,  484. 

Coupons  of  interest  attached,  484. 

Money  where  payable,  484. 

No  bond  less  than  5'1,000  to  issue;  or  be  sold  under  par,  484. 

Memorandum  of  bonds  with  numbers,  &c.,  to  be  kept,  484. 

What  State  bonds  exempt  from  taxation,  484. 

Guardians,  executors,  trustees,  &c.,  may  invest  in  State  bonds,  485. 

Title  of  the  act,  or  date  and  chapter,  to  be  recited  in  the  bond,  485. 
PUBLIC  DOCUMENTS. 

Transmitted  by  federal  government,  how  distributed,  485. 

Secretary  to  furnish  documents  to  New  York  Historical  Society,  485. 

Library  of  documents  establislied,  48S. 
PUBLIC  LANDING.    See  Inspections. 
PUBLIC  LANDS.    See  Entries  and  Grants;  Library  Fund,  ifc. 

Trespass  on,  misdemeanor,  210. 
PUBLIC  LIBRARY. 

$500  yearly  appropriated  for,  486. 

Governor  and  judges  of  supreme  court  to  be  trustees  and  appoint  librarian,  486. 

His  salary  and  duty,  486. 

Governor  to  designate  documents  to  be  preserved  and  bound,  485. 

What  books  to  be  bound  and  labelled,  487. 

Penalty  for  injuring  books,  487. 

Tax  on  attorneys'  licenses  at  Morganton  expended  for  books,  487. 

Judges  may  transfer  law-books  from  Raleigh  to  Morganton,  487. 
PUBLIC  PRINTING. 

State  printer  elected  biennially,  487. 

What  printing  to  be  done,  and  pay  therefor,  483. 

To  give  bond  in  ?5,000,  488. 

Bills,  &c.,  in  what  manner  to  be  printed,  488. 

Practical  printer  to  assist  in  estimate  of  work,  488. 

Paper  furnished,  and  binding  contracted  for  by  secretary,  488. 

Paid  for  on  governor's  warrant,  488. 

Copy  of  laws,  &c.,  when  to  be  furnished,  and  printing  completed,  488. 

Laws  distributed  by  secretary,  488. 


703 


704  INDEX. 

PUBLIC  PRINTING,  ( Contmued). 

Journals  printeJ  —  number  of  copies  and  for  whom,  489. 

Acts,  how  arranged ;  and  what  printed  on  the  margin,  489. 

Index  to  be  made  to  all  the  acts,  489. 

Number  of  copies  of  acts  to  be  prmted  for  members,  &c.,  489. 

To  be  bound  in  leather,  489. 

Additional  number  stitched,  489. 

Number  of  public  documents,  489. 

Justices'  names  to  be  recorded  by  secretary,  489. 

To  be  furnished  by  clerks  of  county  court,  489. 

Blanks  to  be  printed  for  offices  of  governor,  treasurer,  &c.,  490. 

Vacancy  in  office  of  printer,  filled  by  governor,  490. 

Secretary,  for  services  in  printing,  allowed  biennially  $100,  657. 
PUBLIC  TREASURER.    See  Treasurer. 
PURCHASERS. 

May  recover  of  defendant  in  execution  if  his  title  fail,  279. 

Of  estates  fraudulently  conveyed,  to  have  relief  in  equity,  299. 

QUAKERS,  MORAVIANS,  MENXONISTS,  AND  BUNKERS. 

May  be  affirmed,  434. 

Quakers  may  wear  hats  in  court,  185. 
QUARANTINE  AND  HEALTH. 

Quarantine,  when  and  by  whom  directed,  490. 

Masters  and  pilots  to  report  health  of  vessel,  491. 

Duty  of  those  ordered  to  perform  quarantine,  491. 

Penalties  on  masters  and  pilots  neglecting  orders,  491. 

Vessel  coming  from  infected  place,  to  anchor  at  quarantine,  491. 

Coming  into  port  without  permission,  master  and  pilot  indictable,  492. 

May  be  removed,  492. 

Port  physicians  may  be  appointed,  492. 

Passengers  or  crew  breaking  quarantine,  penalty  for,  492. 

Persons  going  on  board  without  leave,  and  master  permitting  it,  penalty  on,  492. 

Such  persons  may  be  ordered  to  remain  on  board,  492. 

Persons  breaking  quarantine  may  be  arrested  and  sent  back,  492. 

Penalty  for  landing  any  articles,  493. 

Affidavit  of  health,  required  of  master,  493. 

Penalty  on  master  or  physician  giving  false  certificate,  493. 

Provisions  furnished  vessels  in  quarantine,  493. 

Penalties,  how  recovered  and  applied,  493. 

Penalty  on  pilots  bringing  in  vessels  without  certificate,  493. 

Commissioners  of  navigation  may  appoint  harbor  master  and  health  officer,  498. 

May  enact  by-laws  and  regulations,  498. 

Commissioners  of  seaports,  where  none  of  navigation,  to  have  like  authority,  494. 

Nuisances  in  seaport  towns;  what  deemed  such,  494. 

Lots  in  seaports  to  be  kept  drained  at  certain  seasons,  penalty,  &c.,  494. 

Commissioners  may  abate  the  nuisance,  at  owner's  expense,  494. 

Officers  of  police,  to  provide  against  introduction  of  contagious  diseases,  494. 

Hospitals  established  by  county  court  and  commissioners  of  towns;  proviso,  495. 

Commissioners  of  navigation  of  Washington  may  establish  quarantine  hospiUals,  466. 
QUO  WARRANTO  AND  MANDAMUS. 

Informations  in  what  cases  and  by  whom  filed,  495. 

Nature  of  the  proceedings;  pleas  filed  first  term,  unless,  &c.,  495,  496. 

In  certain  cases  several  rights  tried  in  one  information,  495. 

Upon  conviction,  what  judgment,  496. 

Costs  adjudged  to  the  party  succeeding,  490. 

Return  to  be  made  to  first  mandamus,  496. 

Time  given  to  make  return,  plead,  &c.,  496. 

Returns  may  be  contested;  proceedings  thereon,  496. 

On  verdict  for  plaintiff  or  defendant,  what  consequences  to  follow,  496. 


INDEX.  705 

RAILEOADS,  AND  RAILKOAD  COMPANIES. 

Land  for,  how  condemned  — ■  see  Internal  Imjji'ovement. 

JIalicious  or  wilful  injuries  to  railroads  —  see  Crimes  and  Punishments,  223. 

Titles  to  estate  condemned  for  right  of  way,  &c.,  not  lost  by  time  or  presumption,  375. 

Slaves  not  to  be  carried  on  railroads  without  written  permit  unless,  &o.,  579. 

Proviso  as  to  slaves  travelling  with  masters,  580. 

To  keep  bridges  over  county  roads ;  penalty  for  failure,  540. 
KALEIGH,  city  of,  to  be  the  seat  of  government,  554. 
RANGER.     See  Strays;  Salaries  and  Fees ;   Oaths. 
RAPE.    See  Crimes  and  Punishments,  203. 

Slave  or  free  negro  attempting  rape  on  white  female  to  suffer  death,  573. 
RECEIVERS  OF  SALARIES  AND  FEES.     See  Revenue. 

Of  five  hundred  dollars  value,  taxed,  614. 
RECEIVERS  OF  STOLEN  GOODS.    See  Crimes  ami  Punishments. 

Of  any  value,  guilty  of  misdemeanor,  213. 

Indictment  against,  joined  with  counts  for  larceny  and  trading  with  slaves,  232. 
RECOGNIZANCE.    See  Fines  and  Forfeited  Recognizances. 
EECORDARI  AND  FALSE  JUDGMENT. 

Clerlis  of  superior  courts  to  take  security  on  writs  of  recordari,  74. 
RECORDS. 

Of  courts  to  be  delivered  by  outgoing  clerk  to  successor,  122. 

Judge  may  order  records  of  superior  courts  to  be  delivered,  &c.,  122. 

Stealing  or  obliterating  proceedings  and  records,  misdemeanor,  208. 

Records  of  court,  and  papers  lodged  in  State  ofBces,  proved  by  copy,  273. 

Letters  of  administration,  returns,  &c.,  in  other  States  proved  by  copy,  273. 

Of  other  States,  how  authenticated,  623. 
REDEMPTION,  RIGHT  OF.    SeeDmoer;  Estates;  Executions;  Limitations;   Widows. 

Land  sold  for  taxes  redeemable  in  one  year,  523,  524. 

Mode  of  proceeding.    See  Revenue. 
REFUNDING  BOND. 

To  be  given  by  distributees  on  settlement  of  estates,  268. 

Remedy  of  creditors  on  bond,  287. 

Widows  of  intestates  dying  without  known  issue,  to  give  refunding  bond,  &c.,  604. 

To  be  given  in  certain  oases,  on  decrees  taken  in  absence,  &c.,  188. 
REGISTERS. 

Registers  appointed  by  county  court,  497. 

Oath  of,  442. 

To  hold  otBoe  till  successor  appointed,  444. 

Vacancies  between  terms  filled  by  three  justices,  497. 

Appointee  to  hold  office  till  appointment  by  court,  497. 

Clerks  to  record  appointment,  497. 

Fees  of  register;  may  be  changed  by  court,  552. 

To  give  bond  in  S10,000,  497. 

Clerk,  on  request,  to  deliver  deeds  and  fees  to  register  ten  days  after  court,  497. 

Registers  to  caU  on  clerks  for  deeds,  &e.,  in  20  days  after  coui-t,  498. 

Mortgages  and  deeds  in  trust  to  be  registered  on  delivery,  498. 

Other  deeds,  &c.,  within  one  month  —  Penalty  for  neglect,  498. 

Registers  to  keep  alphabetical  files  of  deeds,  &c.,  and  deliver  them,  498. 

Office  to  be  kept  where  justices  shall  direct,  498. 

Days  of  attendance  may  be  fixed,  &c.,  498. 

Peu.alty  for  violation  of  duties  —  SlOO,  and  misdemeanor,  498. 

County  court  may  have  register's  books  transcribed  and  indexed,  498. 

To  be  deemed  originals,  499. 

Errors  in  new  books  corrected  at  any  time,  499. 

Omitted  duties  performed  by  order  of  court,  at  cost  of  outgoing  register,  199. 

General  index  to  register's  books  made  by  order  of  court,  499. 

To  indorse  on  mortgages  and  deeds  of  trust,  day  of  receipt,  245. 


706  IHDEX. 

EEGISTERS,  ( Continued). 

And  register  them  in  order  of  deliverj-,  245. 

Bonds  of  clerks  of  courts  to  be  registered,  121. 

His  bond  may  be  sued  by  any  person  injured,  iib. 

Names  of  justices  on  the  bench  at  his  quiilitication  to  be  recorded,  448. 

Justices  failing  to  take  bond,  c&c,  bound  as  sureties,  446. 

Register  to  receive  tax  on  deeds  and  pay  to  sheriff,  510. 

To  list  the  number  of  deeds;  penalty  $1,000,  511. 

Failing  to  account  with  sheriff,  to  be  sued,  526. 

To  furnish  copy  of  clerk's  bonds  to  comptroller,  628. 

Malicious  burning  of  register's  oflSce,  felony,  203. 

Office  to  be  examined  by  county  solicitor  to  see  whether  properly  kept,  101. 
REGISTRATION.    See  Deeds  and  Conveyances;  Registers. 

Errors  in  registration  of  deeds,  &c.,  corrected  on  petition,  246. 

Deeds  for  land  registered  in  wrong  county  before  1S30,  how  registered  in  proper  county,  246. 

Title  to  swamp  lands  not  registered,  vested  in  literary  fund,  360. 
RELIGION.     &ce  Religious  Societies ;  Declaration  of  Rights. 
RELIGIOUS  CONGREGATIONS.    See  Religious  Societies. 
RELIGIOUS  SOCIETIES. 

Donations  to,  to  vest  in  them  or  their  trustees,  499. 

Houses  of  worship  on  vacant  lands,  belong  to  the  society  erecting  them,  500. 

May  appoint  tnistees  to  hold  their  property,  500. 

Yearly  value  of  lands  which  a  church  or  society  may  hold,  500. 

Trustees  may  be  removed,  &c. :  to  be  accountable,  600. 

Ways  to  places  of  worship,  &c.,  not  to  be  stopped  —  penalty,  500. 

Stud  horses,  jackasses,  and  curiosities  not  to  be  exhibited  in  half  mile  of  congregation,  500. 

Exception,  as  to  towns,  &c.,  600. 

Sale  of  liquors  and  other  articles  in  a  mile  forbidden,  501. 

Exception,  and  penalty,  501. 

Intoxication  and  disorderly  conduct  during  worship,  penalty  for,  601. 

Penalties  under  this  chapter  belong  to  the  poor,  501. 

Property  set  ap.art  for  divine  worship  not  taxed,  506. 

Sale  of  liquor,  traffic,  and  exhibitions  near  places'of  worship,  misdemeanor,  unless,  &c.,  224. 
REMOVAL  OF  CAUSES. 

To  adjoining  counties— see  Courts,  County  and  Superior,  182. 

By  consent  may  be  removed  to  any  convenient  county,  183. 

On  removal,  transcript,  depositions,  bail,  and  prosecution  bonds  to  be  sent,  183. 

After  removal  subpoenas  and  commissions  issued  from  either  court,  175. 

Suits  in  equity,  when  removed  to  supreme  court,  192. 

For  divorce,  &c.,  may  be  removed  to  supreme  court,  254. 

Also  for  advancements  of  estates  of  non-sane  persons,  331. 
REMOVING  DEBTORS.    See  Frauds  and  Fraudulent  Convtyances. 
RENTS.    See  Landlord  and  Tenant. 

REPEAL  OF  STATUTES.    See  Statutes,  Repeal  and  Construction  of;  Revised  Code. 
REPLEVIN. 

Action  of,  for  slaves  and  other  chattels  under  certain  rules,  501. 

1.  Phintiff  to  make  affidavit,  502. 

2.  Clerk  to  describe  in  writ  the  property  and  its  value,  602. 
"   And  take  bond  of  the  plaintiff,  602. 

Duty  of  sheriff  in  executing  the  writ,  602. 

Shall  deliver  property  to  plaintiff,  unless  defendant  give  bond,  502. 
Wliat  judgment  if  plaintiff  recover,  tlie  property  having  remained  with  him,  602. 
Wliat  judgment  in  that  case,  if  defendant  recover,  502. 

Judgment  where  plaintiff  recovers,  the  property  having  remained  with  defendant,  602. 
Judgment  in  such  ca.se,  if  plaintiff  fails,  502. 
REPOPwTER  OF  DECISIONS  OF  THE  SUPREME  COURT. 
To  be  annually  appointed,  200. 


INDEX.  707 

REPORTER  OF  DECISIONS  OF  THE  SUPREME  COURT,  ( Gmtimed). 

To  report  sucli  cases  only  as  the  court  may  direct,  200. 

Reports,  how  distributed,  2C0. 

Salary  of  reporter,  544. 

May  print  copies  on  his  own  account,  544. 

May  contract  with  clerk  of  supreme  court  to  furnish  copies  for  distribution,  544. 
REPRESENTATIVES.    See  Members  of  Congress. 
RESTITUTION. 

Goods  restored  on  conviction  of  rohbery  or  larceny,  234. 

In  forcible  entry,  &c.,  not  awarded  where  party  has  been  in  possession  threo  years,  297. 
RETAILERS.     See  Crimes  and  Punishments ;   Ordinaries  and  Inns ;   Grand-Jury;  Rtvenne. 

License  to  retail  spirituous  liquors,  how  obtained,  448. 

Retailing  without  license,  misdemeanor,  221. 

No  retailer  to  credit  for  Hquor  over  ten  dollars,  443. 

Tax  on,  511. 

List  of  retailers  furnished  grand-jury  by  sheriff,  562. 

License  to  retail  in  two  miles  of  Chapel  Hill,  forbidden,  595. 
RETURNS  BY  CONSTABLES.     Sea  Constables,  Justice  of  the  Peace. 

Bonds  taken  by  constable  on  ca.  sa.,  when  returned  to  court,  336. 
RETURNS  BY  SHERIFF.    See  Sheriff ;  Process;  Courts,  Counhj  and  Superior. 

Sheriff  to  execute  and  return  process  delivered  twenty  days  before  court,  560. 

Else  to  forfeit  $100  to  the  party  aggi-ieved,  660. 

For  every  false  return  to  forfeit  8500,  561. 

Penalty  for  making  false  returns  on  notices,  &o.,  184. 
REVENUE. 

What  property  and  persons  taxed,  and  what  exempt  from  tax,  506. 

What  State  bonds  exempt,  484. 

Tax  on  real  estate,  506. 

Such  tax  a  lien,  506. 

Capitation  tax  to  be  equal  —  ages  for  such  tax,  27. 

Tax  on  poll,  506. 

On  slave  poll  paid  by  owner;  when  hirer  shall  pay,  506. 

Whom  court  may  exempt  from  poll-tax,  27,  506. 

Tax;  on  tiirnpike  toll-gates,  and  gates  across  highways,  506. 

On  stud  horses  and  jackasses — paid  in  advance  by  non-residents,  507. 

On  real  estate  of  $300  value,  and  personal  of  $200,  descended,  devised,  bequeathed,  or  distributable 
among  collateral  kindred,  607. 

First  class,  one  per  cent,  507. 

Second  class,  two  per  cent.,  507. 

Third  class,  three  per  cent.,  507. 

Certain  persons  exempt  from  this  tax,  507. 

Tax  on  personalty  and  surplus  of.land  sales  to  be  retained  by  executor,  &c.,  and  paid  to  clerk,  507. 

Remedy  against,  for  failing  to  pay  over,  608. 

Value  of  personal  estate,  how  ascertained,  508. 

Executor,  &c.,  to  report  to  clerk  an  account  of  the  real  estate,  508. 

Its  value,  how  ascertained,  608. 

Heir,  &o.,  failing  to  pay  tax  in  six  months  after  report,  to  be  sued,  508. 

Clerk  to  keep  a  record  of  such  taxes,  508. 

To  return  a  list  to  comptroller,  and  pay  them  to  sheriff,  508. 

Commissioners  appointed  by  governor  to  enforce  the  collection  of  such  tax,  508. 

Estiites  subject  to  tax,  not  to  be  settled  without  administration,  on  pain,  &c.,  of  S500,  508. 

When  no  administration  in  three  months,  clerk  to  administer,  509. 

Commissioners  to  sue  defaulting  clerks  for  penalties,  &c.,  509. 

Conveyances  in  fraud  of  such  tax,  void,  509. 

Tax  on  all  interest  exceeding  six  dollars,  509. 

On  dividends,  or  profits,  exceeding  six  dollars,  509. 

Mode  of  ascertaining  the  taxable  sum  of  interest  and  dividends,  509. 

On  money  employed  in  trading  iu  slaves,  or  other  kinds  of  trade,  509. 


708  INDEX. 

REVENUE,  {Cdnlhmed). 

Sulkies,  buggies,  and  other  pleasure  vehicles  of  $50  value  auJ  upwards,  510. 

Plate,  jewelry,  and  watches,  510. 

Musical  instruments,  510. 

Certain  ai-ms,  if  used  at  any  time  during  the  year,  510. 

Retailers  and  tavern-keepers,  510. 

Billiard  tables — bowling-alleys  —  livery-stables,  510. 

Playing  cards  —  seller  to  state  the  number,  510. 

Peddlers  of  patent  medicines,  razor  straps,  &c.,  510. 

Mortgages,  deeds  in  trust,  and  maiTi.age  contracts,  510. 

Register  to  receive  and  account  for  the  tax,  510. 

To  hst  the  number  of  such  deeds,  on  pain,  &c.,  SlOO,  511. 

Tax  on  marriage  licenses  —  clerk  to  receive  and  list  it,  511. 

on  retailers,  peddlers,  billiards,  bowling-alleys,  &c.,  paid  m  advance,  511. 
on  merchants,  merchant  tailors,  and  jewellers,  511. 
on  dealers  in  liquors,  wines,  or  cordials,  611. 
on  drugs,  medicines,  and  nostrums  sold  by  non-residents,  611. 
on  commission  merchants,  auctioneers,  511. 
Capital,  and  commissions  of  raerchauts,  how  estimated,  511. 
On  distillers  of  turpentine,  511. 

Bonds,  &c.,  of  merchants,  &o.,  not  deemed  part  of  their  stock  in  trade,  511. 
Merchants,  &o.,  to  apply  for  license  on  first  of  April,  512. 
Such  as  open  stores  afterwards,  how  to  obtain  license,  513. 
Merchant  selling  without  license  to  pay  additional  tax  of  SlOO,  512. 

Ob  peddlers  of  carriages,  &c.,  not  of  the  manufacture  of  the  State,  $30  in  each  county,  512. 
Ou  horses  brought  into  the  State  for  sale,  512. 

On  persons  keeping  a  fixed  establishment  for  sale  of  carriages,  &c.,  512. 
Unless  sold  where  made,  612. 
Selling,  or  offering  to  sell,  by  sample,  512. 

License  under  three  preceding  sections  obtained  on  paying  the  tax,  512. 
Two  not  to  peddle  under  one  license,  512. 
Double  tax  for  violating  four  preceding  sections,  513. 

On  peddlers  of  other  articles  not  obtaining  license,  $100  a  year  for  each  county,  513. 
On  peddlers  obtaining  license  $30  for  each  county,  613. 
Proviso  (1.)  as  to  south  side  of  Albemarle  sound,  513. 

(2.)  As  to  peddling  live-stock,  vegetables,  &c.,  613. 

(3.)  As  to  books,  charts,  maps,  &o.,  513. 

(4.)  Two  not  to  peddle  under  one  license,  513. 

(5.)  Shall  pay  the  duties  ou  goods  sold  at  auction,  513. 

(6.)  Deemed  peddlers,  though  they  procure  houses  temporarily,  513. 
On  brokers  8100  a  year,  and  §200  if  not  paid  down,  513. 
Receivers  of  salaries  and  fees  of  S500  yearly  v.alue,  514. 
On  licenses  to  attorneys  ;  how  disposed  of,  514. 
Insurance  companies,  514.  • 

Agencies  of  banks  incorporated  out  of  the  State,  514. 
Double  tax  ou  failure  to  pay,  514/ 
On  circuses,  menageries,  &c.,  $50  for  each  county,  614. 

Stage-players,  jugglers,  rope-dancers,  and  exliibiters  of  curiosities  for  reward,  514. 
On  singers,  serenaders,  and  players  on  musical  instruments,  for  reward,  614. 
Tax  imposed  in  sections  42,  43,  44,  to  be  paid  in  advance,  or  doubled,  615. 
Sheriflf's  receipt  to  specify  the  county,  &o.,  for  which  the  tax  is  paid,  515. 
Peddlers  and  exhibiters  to  show  receipts  to  justices  and  constables,  515. 
Penalty  for  refusing;  proceedings  to  enforce  it,  615. 

Members  of  family  and  free  negro  tenants  to  be  listed  by  head,  or  landlord,  015. 
What  subjects  listed,  615. 
Tax  lists  to  refer  to  first  day  of  April,  515. 

Persons  coming  of  age  after  that  day,  may  pay  tax  and  vote,  015. 
Lists  of  deceased  and  disabled  persons,  &c.,  by  whom  given  in,  515. 
Lands  divided  after  assessment,  how  valued  and  listed,  515. 
List-takers  appointed  by  first  court  hold  after  Ci-st  day  of  April,  516. 


INDEX.  709 

REVENUE,  { Cmilinued). 

Their  names  and  ilistricts  advertised  during  the  term,  516. 

On  failure  to  appoint,  three  justices  may  before  July,  516. 
.  Notice  of  appointment  issued  forthwith,  and  served  in  ten  days,  516. 

List-taker  to  advertise  ten  days,  tlie  places  and  times  of  taking  lists,  516. 

Sections  59  and  66  copied  into  notice  to  list-taker  —  his  duty,  516. 

If  list-taker  die,  justices  to  appoint  another,  516. 

Inhabitants  to  attend  and  give  their  lists,  516. 

List-takers  to  read  over  the  subjects,  and  administer  an  oath,  516. 

Penalty  for  faihng  to  administer  oath,  517. 

Proviso,  for  females,  infirm  and  absent  persons,  517. 

County  in  which  taxables  shall  be  listed,  517. 

Persons  failing  to  list,  to  pay  double  tax,  517. 

Sheriff  discovering  land  not  assessed,  to  report  it  to  court  —  proceedings,  517. 

Listers  refusing  to  take  oath,  guilty  of  misdemeanor,  517. 

To  be  committed  and  indicted,  517. 

Sheriff  to  inform  prosecuting  officer  of  frauds  in  the  revenue — his  duty,  517. 

Forms  for  tax  lists  prepared  by  treasurer,  and  sent  to  clerks,  518. 

Mode  of  entering  taxables,  518. 

List-takers,  or  assessors,  refusing  to  act,  guilty  of  misdemeanor,  518. 

Lists  returned,  to  be  recorded  by  clerk,  and  set  up  in  court  house,  518, 

Abstracts  of  lists  of  all  taxes  sent  to  comptroller  before  April,  518. 

What  to  be  set  forth  in  abstracts,  518. 

Printed  forms  for  abstracts  furnished  by  comptroller,  618. 

Penalty  on  clerk  for  faihng  to  send  abstracts,  518. 

County  court  may  receive  tax  lists  up  to  March,  519. 

Board  of  valuation  appointed  every  five  years,  to  value  real  estate,  519. 
For  Wilmington,  every  two  years,  519. 
Mode  of  assessing  the  value,  519. 
Fisheries,  mines,  &c.,  considered  in  assessment,  519. 
Lands  in  several  districts,  where  valued,  519. 
Affidavit  of  board,  619. 

Owner  to  furnish  board  a  list  of  his  estate,  519. 

Where  number  of  acres  is  unknown,  board  shall  order  survey  at  owner's  cost,  519. 
Valuation  too  high,  how  reduced,  520. 
How  advanced,  when  increased  by  mines,  &c.,  620. 
Overcharge  of  poll,  &c.,  how  corrected,  520. 
•Pay  of  board,  620. 
Allowance  to  clerk  for  services  concerning  the  revenue,  520. 
Double  tax,  in  what  cases  released  by  county  court,  520. 
Tax  lists  delivered  by  clerk  to  sheriff,  by  April,  620. 
Form  and  contents  of  lists  —  penalty  for  omission,  520. 
Tax  collectors  to  be  sworn,  521. 
If  sheriff  die,  his  sureties  may  collect,  521. 
Sherifir  allowed  one  year,  after  first  of  October,  to  collect,  621. 
Shall  collect  double  tax  on  unlisted  property,  521. 
If  not  assessed,  what  deemed  its  value,  521. 
On  receiving  tax  lists  sheriff  to  advertise  them,  &c.,  521. 
May  distrain  for  taxes,  521. 

Taxes  of  persons  about  to  remove,  collected  forthwith,  521. 
Of  solvent  persons  having  no  estate  in  the  county,  collected  by  execution,  521. 
Sales  of  personalty  for  taxes,  how  made,  522. 
Of  land,  how  conducted,  522. 
(1.)  Sheriff  to  report  to  court  a  list  of  the  lands,  &c.,  522. 

To  be  read  aloud,  recorded,  and  posted  in  court  house,  522. 
(2.)  Land-owners  notified,  how,  622. 

(3.)  Sale  to  be  made  within  two  terms  after  report  — where  made,  522. 
(4.)  Whole  tract  to  be  put  up;  who  deemed  buyer,  522. 
(5.)  Sale  to  be  returned  at  second  term  after  lands  reported  for  sale,  622. 

60 


710  niDBx. 

BEVENUE,  (Continued). 

Proceedings  on  return,  522. 

Lands  of  infants  and  insane  persons  not  to  be  sold,  528. 
When  held  jointly  with  such  persons,  how  sold,  523. 
Proceedings  to  get  title  in  such  case,  523. 
Lands  redeemable  in  one  year,  523. 
Mode  of  proceeding,  B23. 

Purchaser  may  select  the  quantity  bought,  523. 
To  be  laid  off  in  a  compact  body.  Sec,  523. 
Land  to  be  surv-eyed  in  a  year  after  time  for  redeeming,  523. 
By  whom  surveyed,  523. 
Deed  made  by  the  sheriff,  523. 

Proceedings  when  iinother  conveys  than  the  sheriff  who  sells,  523. 
Purchaser  subject  to  certam  back  tax,  523. 

Penalty  on  sheriffs  .and  clerks  omitting  the  duties  prescribed  in  sections  90  and  91,  524. 
On  county  surveyor  failing  to  survey,  524. 
State  deemed  buyer,  if  none  bid  less  than  the  whole  tract,  524. 
Sheriff  to  report  sales  to  county  court  —  proceedings  thereon,  524. 
Copies  of  report  to  be  certified  by  clerk,  for  comptroller  and  secretary,  524. 
Proceedings  thereon,  524. 

Sheriff  failing  to  report  sale,  or  deposit  copy  with  secretary,  to  be  charged  with  S2,000,  524. 
Lands  bid  off  by  State  redeemable  —  on  what  terms,  524. 
Deemed  vacant  and  subject  to  entry,  524. 
On  death  of  sheriff,  his  sureties  may  report  sales,  &c.,  625. 

Sheriffs  and  all  tax  receivers  to  settle  yearly  with  comptroller  between  June  and  October,  525. 
Comptroller  to  report  to  treasurer  amount  due  from  each,  525. 
Sheriff  to  render  to  comptroller  the  amount  of  each  kind  of  tax,  525. 
A  copy  certified  by  comptroller  to  be  deposited  with  clerk,  525. 
With  what  revenue  sheriffs  shall  be  charged,  525. 
With  what  taxes  to  be  credited,  525. 
(1.)  With  tax  on  land  bought  by  State,  525. 
(2.)  With  insolvent  taxables  allowed  by  court,  525. 
List  of  money  received  by  sheriff  from  clerks,  and  on  unlisted  taxables,  to  be  returned  to  court 
next  before  October,  525. 

What  the  list  shall  set  forth,  526. 

List,  in  certain  cases,  filed  with  clerk  in  vacation,  526. 

Sheriff  to  deliver  a  copy  to  comptroller,  or  be  charged  with  $1,000,  526. 

Penalty  on  clerk  for  violating  sections  111,  112,  113,  626. 

Register  or  clerk  failing  to  account  with  sheriff  for  taxes,  to  be  sued,  626, 

Insolvent  taxables,  in  what  cases  allowed  by  court,  526. 

Penalty  on  sheriff  for  false  return  of  insolvents,  627. 

On  clerk  failing  to  record  and  set,up  insolvents'  lists,  527. 

Oath  of  sheriff  on  settUng  with  comptroller,  527. 

Comptroller  suspecting  fraud  or  perjury  concerning  revenue,  to  inform  the  proper  oflicer,  627. 

Commissions  and  pay  allowed  sheriff' on  settlement  of  taxes,  527,  628. 

Sheriff  failing  to  settle,  comptroller  to  report  his  account,  628. 

How  it  shall  be  stated,  528. 

Treasurer  to  take  judgment  against  him  and  sureties,  528. 

Copy  of  sheriff's  bond  furnished  comptroller  by  clerk,  528. 

Copy  of  clerk's  bond  furnished  comptroller  by  register,  528. 

Such  copies  to  be  evidence  in  suits  against  sheriffs  or  clerks,  628. 

If  register  fail  to  transmit  copy,  how  comptroller  shall  proceed,  528. 

Penalties  on  clerks  and  sheriffs  for  defaults,  not  specially  provided  for,  628. 

All  penalties  herein  imposed  recovered  by  treasurer  on  motion,  529. 

Certificate  of  treasurer  or  comptroller,  and  copies  of  office  papers  to  be  evidence,  029. 

Debt  due  the  State  recovered  on  motion,  529. 

Slieriffs'  receipts  to  show  separately  the  amounts  of  State  and  county  tax,  629. 

Tax  on  profits  of  Deep  River  Navigation  Company  to  be  a  sinking  fund,  629. 

Tax  on  coal  shipped,  to  be  a  part  of  said  fund,  629. 


INDEX.  711 

REVENUE,  (Continued). 

What  sales  exempt  from  auction  tax,  104. 

Proceeds  of  wreck  sales  not  claimed  in  a  year  to  belong  to  treasurj',  8, 120. 
Names  of  defaulting  revenue  officers  to  be  published,  893. 
EIVEES  AND  CREEKS. 

County  court  may  appoint  commissioners  to  examine  streams  and  make  improvements,  530. 

Overseers  yearly  appointed  by  county  court,  630. 
Subject  to  same  rules  as  overseers  of  roads,  531. 

Court  may  direct  flats,  &c.,  to  be  procured,  531. 

Power  of  county  courts  of  Johnston,  Wayne,  &c.,  as  to  Neuse  river,  531. 

Streams  laid  off  into  districts,  531. 

One  fourtli  left  open  for  fish,  531. 

Obstructing  boats  by  felling  trees,  &c.,  misdemeanor,  531. 
ROADS,  FERRIES,  AND  BRIDGES. 

What  shall  be  public  roads  and  ferries,  532. 

County  courts  to  establish  and  discontinue  ferries,  roads,  and  bridges,  533. 

Ferries  and  roads,  how  established,  altered,  or  discontinued,  533. 

Court  may  decree  how  costs  shall  be  paid ;  appeal  allowed,  533. 

Roads,  how  laid  out,  533. 

When  changed,  how  to  be  received,  533. 

How  persons  may  turn  roads  on  their  own  lands,  533. 

Overseers  of  highways,  annually  appointed  and  hands  assigned,  634. 

Their  duty;  notice  of  appointment,  534. 

Not  bound  to  serve  more  than  one  year  in  three,  534. 

Clerk  within  ten  days,  &c.,  to  furnish  sheriffs  with  orders  appointing  overseers,  634. 

Sheriff  to  apply  at  clerk's  oflice  for  orders,  and  serve  them  in  20  days,  &c.,  534. 

Penalty  on  clerks  and  sheriffs  for  neglect,  634. 

Hands  to  be  summoned  three  days  before  work  day,  534. 

Who  to  be  reckoned  hands,  634,  535. 

Penalty  for  failing  to  work,  535. 

Overseers  competent  to  prove  notice,  535. 

None  excused  from  working,  unless  by  county  court,  535. 

Overseer  may  apportion  road  among  hands,  535. 

But  still  liable  for  any  default,  535. 

What  to  be  width  of  roads  and  causeways,  536. 

Timber  and  earth  taken  from  adjoining  lands,  536. 

Owners  may  petition  county  court  for  pay,  536. 

Footways  and  hollow  bridges  made  by  overseer,  where  county  court  may  order,  536. 

Order  of  court  presumed  after  ten  years'  use,  536. 

Sign-posts  at  road  forks  to  be  set  up  by  overseers,  536. 

Penalty  for  neglect,  536. 

Removing  or  defacing  posts,  or  mile-marks,  misdemeanor,  536. 

Overseers  to  measure  and  mile-mark  roads,  536. 

Penalty  on  overseers  for  any  neglect  of  duty,  53T. 

Bridges  to  be  erected  by  court,  at  county  expense,  537. 

Contracts  for  building  bridges  binding  on  county,  537. 

Owners  of  mills  and  ditches  on  and  across  roads,  to  make  and  keep  up  bridges,  637. 

Penalty  for  neglect,  538. 

Toll-bridges  allowed  by  court,  when,  538. 

Builders  to  keep  them  in  repair,  or  forfeit  toll  and  be  indicted,  538. 

Tolls  of  ferry  regulated  by  county  court,  538. 

Penalty  for  refusing  to  keep  it  up,  538. 

Owners  may  build  toll-bridges  at  their  ferries,  538. 

Draw  in  bridge,  when  to  be  made,  638.. 

Bonds  of  owners  of  ferries  and  toll-bridges,  taken  by  county  court,  538. 

Persons  injured  may  recover  damages,  539. 

Penalty  for  keeping  ferry,  &c.,  witliout  authority,  539. 

Proviso,  for  mail  carriers,  539. 


712 


INDEX. 


KOADS,  FERRIES,  AND  BRIDGES,  (Contintied). 
Fastening  vessels  to  float  bridges,  penalty  for,  539. 
Railroad  companies,  &c.,  to  keep  draw  in  bridges,  539. 

Owners  of  steamboats,  &c.,  to  notify  owners  of  bridges  to  construct  draws,  S89. 
Penalty  for  neglect,  539. 
Counties  to  erect  draws  where  necessary,  539. 
Railroad  companies,  &c.,  to  keep  bridges  over  county  road,  540. 
Penalty  for  failure,  540. 

Duty  of  attorney-general,  &c.,  to  prosecute  suits  for  injuries  to  bridges,  640. 
Cart-ways,  in  what  cases  and  how  to  be  obtained,  540. 
Proceedings  therefor,  540. 

May  be  changed  or  discontinued;  gates  or  bars  erected  across  them,  540. 
Penalty  for  injuring  gates  or  bars,  641. 
Leave  to  erect  gates  across  highways,  how  obtained,  641. 
What  persons  exempt  from  working  on  roads,  541. 

Appeal  allowed  from  orders  establishing  and  discontinuing,  roads,  &c.,  73,  553. 
Overseers  neglecting  duty,  guilty  of  misdemeanor,  210. 
Highways  ci-ossed  by  railways  not  to  be  obstructed,  259. 
Highways  may  be  turned  by  company,  359. 
New  road  to  be  made  good,  as  former  one,  369. 
Road  hands  not  ordered  out  on  muster  day,  407. 
Incorporated  towns  to  keep  in  repair  their  bridges  and  streets,  589. 
Citizens  of,  exempt  from  working  on  roads,  689. 
REVERSIONS. 

Grantees  of,  to  have  like  rights  against  tenants  as  grantors  had,  270. 
And  such  tenants  to  have  like  rights  against  grantees,  as  against  grantors,  271. 
REVISED  CODE. 

When  to  take  effect,  1. 

Former  acts  on  subjects  embraced  in  Revised  Code,  repealed  after  January  1, 1856,  2. 
Repeal  not  to  affect  rights  accrued  or  suits  commenced,  3. 
Effect  of  repeal  on  offences  committed,  and  penalties  incurred,  4. 
On  suits  and  prosecutions  commenced  for  offences,  6. 
No  repealed  act  revived  by  this  repeal,  6. 
Effect  of  repeal  on  persons  holding  offices,  7. 
What  acts  not  repealed,  8. 
How  Revised  Code  shall  be  published,  9. 
Under  superintendence  of  commissioners,  9. 
Chapters  alphabetically  arranged,  9. 

Acts  passed  at  this  session  to  be  published  in  Revised  Code,  9. 
Also  constitution  of  United  States,  9. 
Constitution  of  State,  declaration  of  rights,  &c.,  9. 
Ten  thousand  copies  to  be  published,  10. 
Superintendents  to  be  paid,  11. 

Revised  Code  to  be  received  as  evidence  of  tlie  law,  12. 
REVOCATION  OF  WILLS.     See  Wills  and  Testament). 
REWARDS.    See  Criminal  Proceedings ;  Slaves  and  Free  Negroes ;  Strai/$. 
RICE.     See  Inspections,  350. 
RIOTS.    See  Justice  of  the  Peace. 
ROBBERY.     See  Critnes  and  Punishments. 
ROPE  AND  WIRE-DANCERS. 

Tax  on.    See  Revenue,  614. 
RULES. 

Of  county  and  superior  courts  —  see  Courts,  County  and  Superim: 
Of  courts  of  equity  —  see  Courts  of  Equity. 
RUNAWAYS.     See  Slaves  and  Free  Negroes ;  Apprentices. 

Free  negro  hired  for  fine,  &c.,  absconding,  to  serve  double  time,  679. 


INDEX.  713 


SALARIES  AND  FEES. 

Salaries  of  governor — judges  supreme  court  —  treasurer  —  secretary  of  State  —  compti'oller  —  pri- 
vate secretary  —  superintendent  of  common  schools  —  clerks  of  treasurj',  542. 
When  and  how  paid,  543. 
Salary  of  adjutantgeneral,  643. 
Of  judges  of  superior  courts,  543. 

Additional  pay  when  circuit  has  more  than  twelve  courts,  543. 
Pay  of  judge  holding  special  term,  two  weeits,  160. 
Certificates  of  attendance  to  be  produced,  or  deductions  made,  543. 

Clerks  of  certain  courts  not  to  give  certificate  till  4  o'clock,  p.m.  of  Thursday  in  term,  543. 
Salary  of  attorney-general  and  solicitors,  543. 
Of  reporter  of  decisions  of  supreme  court,  544. 
He  may  print  copies  of  his  report  on  his  own  account,  644. 
May  contract  with  clerk  to  furnish  copies  for  distribution,  644. 
Pay  of  counsellors  of  State,  544. 
Of  clerk  and  door-keeper  of  council,  544. 
Of  members  of  General  Assembly,  544. 
Of  clerks  and  officers  of  General  Assembly,  544. 
Pay  of  members  and  officers,  how  ascertained,  certified,  and  paid,  545. 
Fees  of  governor's  private  secretary,  545. 

secretary  of  State,  545. 

attorney-general  and  solicitors  for  the  State,  on  circuit,  546. 

in  supreme  court,  546. 

county  solicitors,  546. 

attorneys  at  law,  546. 

for  the  State  in  civil  cases,  547. 

clerks  of  county  courts  on  mesne  pi'ocess  —  on  final  process,  547. 

for  proving,  recording,  filing,  searching,  certifying,  entering  on  minutes,  547. 
for  copying — bonds,  licenses,  notices,  &o.,  548. 
of  superior  courts,  548. 
To  have  no  fee  on  capias  in  certain  cases,  548. 

In  certain  State  cases,  clerks  and  sheriffs  to  have  only  half  fees,  548. 
Fees  of  sheriff  on  mesne  process,  subpcenas,  orders,  &c.,  549. 
On  final  process,  549. 

For  keeping  and  conveying  criminals,  maintaining  slaves,  &c.,  549. 
Sheriff's  commissions,  650. 
Fees  for  service  of  equity  process,  650. 
To  have  no  commissions  on  justices'  executions,  650. 
Clerks  to  keep  a  copy  of  their  fees  posted  up  in  office,  550, 
May  issue  execution  for  fees ;  bill  of  costs  to  be  annexed,  650. 
Salary  and  fees  of  clerk  of  supreme  court,  550. 
Fees  of  clerk  and  master  in  equity,  651. 
Compensation  of  county  trustee,  551. 
Fees  of  constables — coroners,  551. 

registers  —  may  be  altered  by  county  court,  552. 

entry-takers,  562. 

county  surveyors  and  chain  carriers  —  ranger,  552. 

rangers  — commissioners  of  affidavits,  553. 

processioners  —  standard  keepers,  663. 

jailers  —  inspectors,  653. 

notaries  —  tobacco  pickers,  554. 
Dates  and  figures,  how  reckoned  in  copy  sheets,  554. 
Fees  for  pilotage,  468,  469. 
of  auctioneers,  104. 

SALE  OF  CORPORATIONS  AND  FRANCHISES.     See  Corpwations. 

SALES  BY  EXECUTORS  AND  ADMINISTRATORS.    &iQ  ExcaUors  and  Administrators. 

SALES  BY  GUARDIAN.    See  Guardian  and  Ward. 

60* 


714  INDEX. 

SALES  BY  SAMPLE,  tax  on.     See  Revenue,  512. 

SALES  FOR  TAX.    See  Revenue ;  Ojuntt/  Revenue  and  Chargei. 

Of  personalty,  how  made,  522. 

Of  land,  how  conducted,  522. 

To  be  reported  to  county  court,  524. 
SALES,  JUDICIAL. 

Speedy  collection  of  judicial  sales  by  motion,  185. 
SALES  OF  ESTATES  OF  IDIOTS  AND  LUNATICS.    See  IdioU  and  Lunatict. 
SALE  OF  WRECKED  PROPERTY.    See  Wrechs. 
SALES  UNDER  EXECUTION.    See  Executions. 

Lands  and  slaves,  how  and  where  sold,  under  execution,  277. 
SALVORS.    See  WrecJcs. 
SCHOOLS.    See  Literary  Fund  and  Common  Schools. 

Property  of  schools  and  literary  institutions  not  taxed,  506. 
SCIRE  FACIAS. 

Return  of  sheriff  on,  evidence  of  service,  184. 

Joint  sci.fa.  to  issue  on  forfeited  recognizances,  235. 

How  to  be  exeouted,  236. 

Proceeding  by,  when  property  of  debtor  is  fraudulently  conveyed,  299. 

SEALS. 

For  the  State  and  courts  of  record,  procured  by  governor,  316. 
New  seals  to  be  procured  when  needed,  315. 
How  prepared  and  paid  for,  315. 
Lost  seals  of  the  State  to  papers,  how  replaced,  315. 
Seal  to  grant  lost,  how  renewed,  266. 

Seal  of  court  not  put  to  process  executed  in  the  county,  183. 
SEAT  OF  GOVERNMENT. 

City  of  Raleigh  to  be  seat  of  government,  554. 

Governor  and  others,  a  board  to  take  charge  of  public  buildings  and  lots,  554. 
May  sue  for  injuries  thereto,  554. 

Shall  furnish  the  offices,  and  appoint  a  keeper  of  the  capitol,  555. 
Duty  and  pay  of  keeper,  555. 
Board  to  secure  capitol  from  fire,  555. 
Rooms  not  to  be  used  as  sleeping  apartments,  555. 
Keys  to  be  kept  by  keeper  of  capitol,  555. 
Rooms  appropriated,  555. 
Keeper  to  give  bond,  555. 

Disorderly  conduct  in  capitol  prohibited  —  Penalty,  556. 
Penalties  against  infants  to  be  paid  by  parents  or  guardian,  556. 
SECRETARY  OF  STATE. 

To  be  biennially  elected  by  General  Assembly,  24. 

To  give  bond  and  take  oaths,  556. 

Form  of  oath,  6. 

Bond  to  be  deposited  in  treasurer's  office,  656. 

To  take  receipts  for  grants.    May  send  grants  by  mail,  656. 

Office  hours,  556. 

Salary  and  fees  of  secretary,  642,  545. 

For  services  in  the  public  printing  allowed  biennially  $100,  667. 

Postages  repaid  to  him,  557. 

Stationery,  fuel,  &c.,  for  public  offices  purchased  by  him,  557. 

His  accounts,  for  expenses,  how  allowed  and  paid,  667. 

Letters  patent  for  incorporating  to  be  recorded  by  him,  136. 

To  record  commission  of  commissioner  of  affidavits,  and  certify  it  to  clerk,  &c.,  125. 

To  furnish  forms  of  returns  and  directions  in  governor's  election,  313. 

To  examine  returns,  312. 

To  funiish  documents  to  New  York  Historical  Society,  486. 
To  furnish  paper  for  public  printing,  468. 


INDEX.  715 

SECRETARY  OF  STATE,  ( Continued). 

Also  to  contract  for  binding  book  directed  to  be  bound,  488. 

Copy  of  acts,  &c.,  when  to  be  furnished,  by  secretary,  488. 

To  distribute  the  laws,  488. 

To  register  and  indorse  certificates  of  State  stocks,  594. 

To  record  names  of  justices,  489. 
SEDITIOUS  PUBLICATIONS  AND  SPEECHES. 

Circulating  seditious  publications  among  slaves  and  free  negroes,  felony,  205. 

Endeavoring  to  excite  insurrection  by  words,  how  punished,  206. 
SEINES.     See  Oysters  and  other  Fish. 
SEIZIN,  defined,  250. 

SENATORS  IN  CONGRESS.    How  chosen,  36. 
SEQUESTRATION. 

Writs  of  issued  by  judges,  190. 

Issued  in  certain  cases  of  application  for  divorce,  &c.,  or  alimony,  252. 
SERENADERS  FOR  REWARD,  tax  on,  514. 
SET-OFF. 

Pleaded,  or  given  in  evidence  under  general  issue  on  notice,  &c.,  176. 
SETTLEMENT  OF  ESTATES.     See  Executors  and  Aclministralors. 

Executors,  &c.,  may  file  petition  for,  in  certain  cases,  287. 
SETTLEMENTS  OF  POOR.    See  Poor. 

How  acquired,  472. 

Settlements  between  treasurer  and  comptroller  to  be  monthly,  593. 
SHEEP.     See  Cattle,  and  other  Stock. 
SHERIFFS. 

How  elected,  658. 

Election,  when  held;  returns  how  made,  558. 

Person  having  highest  vote  elected,  558. 

When  a  tie,  county  court  to  choose  between  them,  558. 

Retunis  when  made,  558. 

Inspectors  and  clerks  neglecting  duty  respecting  returns,  to  forfeit  $100,  558. 

Who  ineligible  to  the  office,  558. 

Sheriff  who  fails  to  settle  for  public  dues,  658. 

Justice  not  to  act  as  sheriff  in  his  county,  362. 

Who  may  not  serve  as  sheriff,  558. 

To  execute  his  bonds,  when,  559. 

To  take  oath  —  form  of  oath,  442. 

Not  deemed  sheriff  till  bond  given,  559. 

Shall  renew  his  bonds  annually,  559. 

Failure,  to  create  a  vacancy,  559. 

Justices  to  meet  on  second  and  third  days  of  term  to  take  bonds,  559. 

How  removed  from  office,  559. 

Duty  of  coroner  and  county  court  in  such  cases,  559. 

Coroner  to  give  bonds  and  take  oaths,  when  called  to  act  as  sheriff,  559. 

What  bonds  sheriffs  shall  give,  and  their  conditions,  560. 

Form  of  bond  for  faithful  discharge  of  duty  in  office,  560, 

His  sureties  liable  for  fines,  &c.,  560. 

May  resign  to  county  court,  560. 

Sheriffs  of  Hyde  and  Carteret  may  execute  process  on  shipboard  between  Ocracock  and  Port*  ■ 
mouth,  560. 

Sheriffs  to  exectte  all  process  from  courts,  560. 

Penalty  for  neglect  SlOO  — for  false  return  $500,  560,  561. 

To  give  receipt  for  process,  which  shall  be  evidence  against  his  sureties,  561. 

To  take  no  obligation  from  one  in  custody,  but  payable  to  himself  as  sheriff,  561. 

Nor  take  unlawful  fees,  561. 

Permitting  escape  of  one  in  execution,  liable  in  action  of  debt,  561. 

Not  to  farm  his  office,  661. 


716  INDEX. 

SHEKIFFS,  ( Continued). 

To  have  custody  of  jail,  561. 

To  diligently  endeavor  to  collect  claims,  6G1. 

Outgoing  sheriff  subject  to  penalty  of  SlOO,  for  not  executing  process  in  certain  eases,  562. 

To  furnish  grand-jury  with  list  of  licensed  retailers,  562. 

Penalty  for  omission,  662. 

To  execute  all  process  from  courts-martial,  407. 

Penalty  for  neglect,  407. 

Person  sworn  in  as  sheriff  considered  rightfully  in  office  until,  &o.,  444. 

To  hold  office  till  successor  appointed,  444. 

To  be  paid  by  county  courts  for  extra  services,  141. 

Shall  be  special  bail,  when,  105. 

Taking  insufficient  bail  in  criminal  cases,  shall  forfeit  SlOO,  106. 

To  indorse  on  process,  &c.,  day  of  receiving  and  executing,  under  penalty  of  8100, 165. 

To  indorse  criminal  process  in  like  manner,  230. 

When  sheriff  of  adjoining  county  to  execute  process,  168. 

In  such  case  to  have  additional  pay,  169. 

Sheriff  to  serve  notices  in  proceedings  —  how  served,  183. 

To  serve  notices  issued  by  clerk  of  board  of  superintendents,  383. 

Penalty  for  failure  to  serve  notices,  or  making  false  returns,  184. 

Shall  summon  witnesses  before  commissioners,  under  penalty,  Sec,  174. 

Penalty  for  failing  to  execute  special  venire,  233. 

For  failing  to  assist  justice  in  suppressing  riots,  296. 

How  deeds  made  when  sheriff  or  coroner  goes  out  of  office,  dies,  &c.,  after  sale,  246. 

Fees  of  sheriff  on  mesne  process,  subpoinas,  orders,  &c.,  549. 

Fees  on  final  process,  549. 

For  keeping  and  conveying  criminals,  maintaining  slaves,  &c.,  549. 

Commissions  of  sheriff,  550. 

Fees  for  service  of  equity  process,  550. 

Pay  for  making  returns  iu  governor's  election,  314. 

For  holding  elections  of  electors  of  President  and  Vice-President,  261. 

For  comparing  polls  in  elections  for  members  of  Congress,  396. 

For  attending  to  compare  polls  in  election  for  senators  of  Assembly,  307. 

Fees  in  certain  cases  paid  out  of  school  fund,  389. 

To  have  no  commissions  on  justices'  executions,  550. 

To  have  only  half  fees  in  certain  State  cases,  548. 

To  be  imprisoned  in  jail  of  adjoining  county,  229. 

Suits  on  bonds  of,  barred  after  six  years,  373. 

Fees  due  sheriff  by  residents  to  be  collected  in  three  years,  374. 

Suit  on  his  bonds  may  be  brought  by  party  injured,  445. 

Summary  remedy  in  court  for  money  detained,  446. 

Eemedy  before  justice  for  money  detained,  446. 

Damjiges  of  12  per  cent,  on  money  detained,  446. 

Names  of  justices  present  at  qualificatiou  of  sheriffs  to  be  recorded,  446. 

Justices  failing  to  take  bond  from  sheriff  bound  as  sureties,  440. 

Sheriff  liable  for  debt  delivered  for  collection,  when,  445. 

Liable  for  money  remaining  in  his  hands,  &c.,  for  three  years,  431. 

Apprehending  an  escape  to  obtain  a  guard,  476. 

To  apply  at  clerk's  office  for  orders  appointing  overseers  within  twenty  days,  &c.,  634. 

Penalty  for  neglect,  534. 

Penalty  for  employing,  wrongly  detaining,  or  suffering  runaway  to  escape,  668. 

For  failing  to  collect  and  pay  county  tax  laid  for  deaf,  &o.,  83. 

Sheriff  failing  to  report  sale  of  land  for  taxes,  or  deposit  copy  with  secretary,  to  be  charged  with 
$2,000,  524. 

May  distr.ain  for  tax,  521. 

His  duties  respecting  collection  of  taxes  —  see  Revenue,  County  lievenue,  and  CtMr<]tt. 
SHINGLES.     See  Jnspectims,  352. 
SIGN-POSTS.     See  Moods,  Ferries,  and  Bridges,  530. 
SINGEKS  FOR  REWAKD.    See  Revenue,  614. 


Slc^') 


^.^v^ 


717 


SINKING  FUND.    See  Bei-enue,  52». 
SLANDER. 

In  suits  for,  if  damages  be  under  $i  no  greater  costs  resOTered,  177. 

Sl.inder  of  women  —  see  Women. 

What  words  written  or  spoken  of  women  actionable,  563. 
SLAVES  AND  FREE  NEGROES. 

Slaves  imported  contrary  to  act  of  congress,  sold  for  the  State,  564. 

Sheriff's  duty  iu  seizing  and  selling,  665. 

His  duty  when  they  abscond,  565. 

Persons  giving  notice  of  such  slaves  to  have  a  fifth  of  their  value,  565. 

Sheriff  to  convey  the  title,  565. 

His  commissions  for  sale,  665. 

Issue  of  such  negroes  included,  565. 

Bringing  slaves  from  certain  States  prohibited,  on  pain,  &c.,  565. 
,   Reward  for  apprehending  runaways,  666. 

What  reward  if  taken  in  certain  swamps,  566. 

Reward  and  prison  fees  to  be  retained  by  jailer,  566. 

Runaway  delivered  to  owner,  or  brought  before  a  justice,  566. 

Proceedings:  —  if  committed  sheriff  to  advertise,  566. 

Penalty  on  sheriff,  &o.,  for  employing,  or  wrongly  detaining  runaway,  or  suffering  his  escape,  i 

Expenses  of  carrying  runaways  how  paid,  668. 

In  certain  cases  sold  by  order  of  court,  568. 

Commissions  for  sale,  668. 

Sheriff  to  convey  proceeds,  how  applied,  568. 

Owner  may  recover  them  on  petition,  569. 

Expenses  of  runaway  in  certain  cases  paid  by  county,  569. 

County  may  recover  back,  569. 

Runaway  may  be  outlawed  in  certain  cases,  569. 

Sale  of  slaves  not  in  writing  and  attested,  void,  300. 

Unless  accompanied  by  actual  delivery,  300. 

Sales  of  in  writing  to  be  proved  and  registered,  244. 

Estates  in,  liraitable  by  deed  as  by  will,  245. 

Gifts  of  void,  unless  in  writing  and  attested,  300. 
.    Adverse  possession  of  three  years,  to  give  title,  375. 

What  slaves  pass  under  the  term  "  increase,"  611. 

Em.incipation  of  slaves,  573. 

Bond  given  by  owner  that  freed  slave  shall  leave  the  State,  573. 

How  emancipated  when  directed  by  will,  573. 

When  court  may  direct  to  what  place  they  may  be  carried,  574. 

Issue  emancipated  with  their  mother,  when,  574. 

Slave  over  fifty  may  be  emancipated  for  meritorious  services,  574. 

Master  to  give  bond,  &c.,  674. 
''  Emancipated  for  other  cause,  to  leave  the  State  in  ninety  days,  574. 

Otherwise  sold,  and  bond  put  in  suit,  674,  575. 

Freed  slaves  violating  the  law  concerning  them,  to  be  presented,  575. 

None  to  be  freed  contrary  to  law,  576. 

Disabled  slaves  to  be  provided  for  by  wardens,  472. 

Owners  of  slaves  not  properly  fed,  liable  for  their  stealing,  570. 

Penalty  on  master  for  hiring  them  their  time,  570. 
i;,,^Not  to  go  at  large  as  freemen,  misdemeanor  for  peiTnitting,  570. 
^   Permitting  slaves  of  others  to  meet  for  dancing,  unless,  &c.,  misdemeanor,  570. 

Slaves  not  to  be  carried  on  ships,  railroiids,  coaches,  iStc,  579. 
Unless  permitted  by,  or  travelling  with  their  masters,  680. 
Killing  slave  of  malice,  murder,  203. 
>  Stealing,  or  knowingly  conveying  away  stolen  slaves,  felony,  204. 
Aiding  them  to  escape  from  the  State,  felony,  204. 
Teaching  to  read  or  write,  use  of  figures  excepted,  218. 
Conspiracy  of,  how  punishable,  571. 


718 


INDEX. 


L: 


—  V- 


SLAVES  AND  FREE  NEGROES,  (CmlinuuT). 

Insurrection  of,  how  punishable,  671. 

Free  persons  conspiring  with  slaves,  how  punished,  672. 

Slaves  convicted  of  conspiracy,  &c.,  to  die  or  be  transported,  572. 

Eetnrning  voluntarily,  after  transportation,  to  suffer  death,  672. 

If  brought  back,  forfeited,  572. 

In  cases  of  insun-ection,  &c.,  commission  of  oyer  and  terminer  may  issue,  672. 

What  evidence  received  in  trials  for  such  offences,  672. 

Judge  may  continue  the  cases  to  regular  term,  573. 

Prosecuting  officer  in  such  court  to  be  paid,  673. 

Guilty  of  perjury  punished  as  freemen,  678. 

Convicted  of  felonies  not  capital,  how  punished,  677. 

Superior  court  to  have  original  jurisdiction  of  felonies,  &c.,  committed  by  slaves,  577. 
■   To  be  tried  as  freemen,  677. 
jT -Wlien  witnesses,  warned  to  speak  the  truth,  578. 
Cs^Owner  to  have  ten  days'  notice  of  trial ;  liable  for  costs,  677. 
^When  owner  cannot  be  notified  counsel  appointed,  578. 
•->^Counsel  to  have  fees,  paid  by  county,  678. 

Slaves  not  to  go  armed,  or  hunt  with  a  gun,  569. 
—  ■^  Nor  hire  their  own  time;  indictable  therefor,  how  punished,  570. 
^J^  Inferior  offences  of  slaves,  what  they  are,  570. 

Cognizable  by  one  justice,  671. 

Appeal  allowed  to  master,  671. 

Slaves  trespassing  on  boats,  canoes,  &c.,  whipt,  113. 

Punished  for  going  on  shipboard  at  certain  times,  221. 

For  injuring  stock,  unless,  &c.,  295. 

Penalty  for  acting  as  pilots,  469. 

Stock  of,  to  be  taken  and  sold  by  wardens,  474. 

Use  of  blankets,  &o.,  in  prison  by  slaves,  paid  for  by  owner,  477. 
''Tenalty  on  ordinary  keeper  entertaining  slaves,  448. 

Description  of  slaves  working  in  Dismal  and  other  swamps,  to  be  taken  and  recorded  by  clerk,  566. 

Certified  copy  to  be  kept  by  slave  while  at  work,  567. 

Penalty  on  owner  for  neglect,  567. 

Slaves  without  certificate  liable  to  be  punished,  667. 

Reward  of  $25  for  taking  them  up.    Jlay  be  treated  as  runaways,  667. 

Whites  working  with  runaways,  or  slaves  without  certificate,  guilty  of  misdemeanor,  567. 

Free  negroes  to  procure  like  certificates,  else  guilty  of  misdemeanor,  667. 

Certificated  slaves,  &c.,  not  to  work  with  uncertificated  —  misdemeanor,  567. 

Forging  certificate  punishable  with  pillory,  &c.,  568. 

Certificate  not  required  as  to  certain  swamps;  or  reclaimed  swamp  land,  668. 

Nor  for  temporary  cutting  of  timber,  668. 

Slave  or  free  negro  attempting  rape  on  white  female,  to  suffer  death,  573. 
v^ree  negro  not  to  migrate  into  the  State,  W5. 
•-'Otherwise  guilty  of  misdemeanor,  and  fined  $500,  676. 
/v-Jpenalty  for  bringing  free  negroes  into  the  State,  575. 

Migrating  hither,  or  their  issue,  not  to  become  inhabitants,  576. 

To  be  removed;  guilty  of  misdemeanor,  675. 

Going  out  of  the  State  and  absent  90  days,  not  to  return,  unless,  &c.,  675. 

Grand-jury  charged  to  present  free  negi-oes  coming  into  the  State,  675. 

Not  to  preach  in  public,  576. 

Vagabond  free  negroes,  how  dealt  with,  676. 

Hires  of,  paid  to  county  trustee,  676. 

Free  negroes  not  to  intermarry  with  slaves,  676. 

Nor  gamble  with  slaves.    Nor  play  with  them  at  certain  games,  576. 

Nor  suffer  slaves  to  gamble  in  their  houses,  &c.,  577. 

Nor  entertain  them,  Sunday  or  at  night,  577. 

Nor  hawk  or  peddle  without  license,_677i___ 

Nor  wear  or  keep  in  house  guns,  &c.,  without  license,  677. 

Nor  sell  spirituous  liquors,  677. 


I 


INDEX.  719 


SLAVES  AND  FREE  NEGROES,  (Cmiinued). 

Or  at  certain  times  to  go  on  board  vessels  —  misdemeanor,  221, 

Marriage  between  white  and  free  negro,  void,  391. 

Free  negroes  not  taxed  for  schools,  8S4. 

Nor  enrolled  in  militia,  except  as  musicians,  399. 

In  certain  cases,  may  be  whipped  instead  of  imprisoned(578.^ 

Committed  for  fines  and  costs,  or  in  bastardy,  not  discharged  as  insolvents. 

May  be  hired  out  for  fines,  or  support  of  bastard  child,  ^78j_579]) 

If  term  of  hire  be  long  as  five  years,  fine,  &o.,  discharged  thereby,  579. 

Absconding,  to  serve  double  time,  579. 

Hirer  recognized  to  feed,  clothe,  &c.,  579. 

Not  to  be  removed  out  of  the  county,  579. 

On  breach  of  recognizance,  discharged  from  service,  579. 

And  entitled  to  the  forfeiture,  679. 

Certain  children  of  free  negroes  bound  out, ,77^ 
vTtights  and  duties  of  master  and  apprentices  —  see  4]>^J^^^}i}£f^ 

Evidence  of  slaves  and  free  persons  of  color,  against  whom  allowed,  578y» 

Free  negroes,  who  deemed  such/^SO^ 

Conveying  free  negroes  from  the  State,  with  intent  to  sell,  felony,  204. 

Selling  free  negroes  within  the  State,  felony,  204. 

Conveying  within  the  State,  with  intent  to  sell,  misdemeanor,  204. 
SLEIGHT  OF  HAND  PERFORMER,  taxed,  515. 
SLOPES  AND  DAMS.     See  Oysters  and  oilier  Fish. 
SOLICITORS.    See  Attorney- General  and  Solidtors. 
SPECIAL  COUNTY  COURT. 

Appointed  at  discretion  by  the  justices,  155. 

Pay  of  members,  155. 
SPECIAL  TERM  OF  SUPERIOR  COURT. 

Appointed  by  presiding  judge  when  necessary,  160. 

No  process  except  snbpcenas  returnable  thereto,  160. 

May  continue  till  a  trial  begun  is  finished,  160. 
SPECIE.    See  Currency. 
SPRINGS.     See  Wells  and  Springs. 
STAGE-PLAYERS,  tax  on.    See  Revenue,  514. 
STAMPS.    See  Weights  and  Measures. 
STANDARD  KEEPER.    See  Weiglla  and  Measures. 

Form  of  oath,  442. 

His  fees,  553. 
STANDS  FOR  CATCHING  FISH.    See  Oysters  and  other  Fiili. 
STATE. 

When  the  buyer  of  land  sold  for  taxes,  524. 

To  be  stockholder  in  companies  to  the  amount  advanced,  356. 

Debts  due  the  State  recovered  on  motion,  529. 

To  have  priority  in  payment  of  its  debt  over  other  creditors,  595. 
STATE  BONDS.     See  Public  Debt. 
STATE  HOUSE.     See  Seat  of  Government. 

Malicious  burning  of  State  house  or  State  offices,  felony,  203. 
STATE'S  DAY.     See  Criminal  Proceedings. 

Day  for  trial  of  crimes  fixed  by  county  and  superior  courts,  234. 

Notice  of  the  day  to  be  given  by  the  clerk,  234. 
Witnesses  in  criminal  cases  not  to  attend  till  State's  day,  234. 
STATIONERY. 

Secretary  to  furnish  State  offices  with  stationery,  557. 
STATUTES  — REPEAL  AND  CONSTRUCTION  OF. 

Repeal  of  statutes  not  to  affect  suits  pending,  580. 
Rules  for  construing  statutes,  580. 


720 


INDEX. 


STATUTES  — EEPEAL  AND  CONSTRUCTION  OF,  IContinued). 

Singular  and  plural  number,  masculine  gender,  &c.,  580. 

Authority  of  public  officers,  &e.,  to  be  exercised  by  majorities,  unless,  &o.,  581. 

"  Month  "  and  "  year "  —  "  oath  "  and  "  sworn,"  681, 

"  Person  "  —  "preceding"  and  "following,"  581. 

"  Seal"  —  "  will"  —  "written"  and  "in  writing,"  581. 

"State"  and  "United  States,"  681. 

Statutes  repealed  by  Revised  Code  —  see  Revised  Code. 
STAVES.    See  Inspections. 
STAY  OF  EXECUTIONS.    See  Justices  of  the  Peace  ;  Pilots;  Principal  and  Surety. 

Executions  from  justice  stayed  in  all  cases,  unless  otherwise  provided,  363. 

Security  for  stay  how  given,  364. 

Garnishee  before  justice,  may  stay  execution,  9". 

Not  allowed  in  suit  on  former  judgment,  364. 

Nor  on  judgment  for  pilotage,  &e.,  462. 

Surety  in  contract  may  dissent  from  staying  the  execution,  585. 

And  then  not  liable  to  the  staying  surety,  585. 
STEAMBOATS. 

Profits  on  money  vested  in,  taxed,  509. 
STOCK.     See  Cattle  and  other  Stock ;  Fences;  Strays. 

Altering  marks  and  mismarking  beasts,  punished  as  larceny,  214. 

Maliciously  and  wantonly  killing  stock  in  certain  counties,  223. 

Killing  or  injuring  stock  running  at  large,  misdemeanor,  223. 

Penalty  on  persons  killing  stock  in  the  woods  and  not  informing  of  it,  116. 

Stock  of  slaves  to  be  sold  by  the  wardens,  474. 
STOCKS.     See  Court  Houses ;  Prisons,  cj-c. 
STOCKS  OF  THE  STATE.     See  Crimes  and  Punishments;  Treasurer;  Ptihlic  Debt. 

State  to  be  stockholder  in  companies  to  the  amount  advanced,  356. 

Certificates  of  the  State's  stocks  to  be  registered  and  indorsed  by  secretary,  694. 

Copy  from  secretary's  office  good  on  loss  of  original,  594. 
STOCKS  OF  CORPORATIONS.    See  Corporations. 

Shares  of  stock  personal  estate,  138. 

Not  to  be  less  than  $50  when  created  by  letters  patent,  136. 

Fraudulently  making  or  issuing  certificates  of  stock,  punishment,  215. 

Knowingly  transferring  fraudulent  certificates,  pimishment,  215. 
STOLEN  GOODS. 

Keceivers  of,  may  be  punished  before  conviction  of  the  thief,  213. 

Counts  for  receiving,  joined  with  larceny  and  trading  with  slaves,  232. 

On  conviction  of  robbery  or  larceny  goods  restored,  234. 
STONE  HORSES  AND  MULES.    See  Cattle  and  other  Slock. 
STRAYS. 

Rangers  appointed  by  county  courts,  582. 

Information  of  strays  made  to  ranger,  562. 

To  be  valued  and  advertised,  582, 

Oath  of  stray  valuers,  443. 

Book  for  entry  of  strays  to  be  kept,  582. 

Reward  to  taker  up,  583. 

Property  not  proved  to  belong  to  taker  up,  after  one  year,  583. 

May  be  reclaimed,  583. 

Expenses  of  keeping,  how  ascertained,  583. 

If  not  claimed  in  a  year,  two  thirds  of  value  paid  to  county  trustee,  583. 

Owner  may  reclaim  of  the  county,  683. 

Taker  up  to  give  bond,  if  value  of  stray  exceeds  four  dollars,  B83. 

Not  answerable  for  its  death,  unless,  &c.,  584. 

Freeholders  only  shall  take  up  and  enter  strays,  584. 

But  any  person  may  take  up  and  retain  them,  584. 

Ranger  may  administer  oaths,  684. 


INDEX.  721 

STRAYS,  {aminued). 

To  make  returns  to  county  court,  584. 

His  books  to  be  open  for  inspectiou,  584. 

County  trustee  to  collect  moneys  accruing  under  this  chapter,  584. 

Kangers  not  paying  over  money,  penalty,  684. 

Duty  of  taker  up  when  stray  (lies,  or  is  reclaimed,  584. 

Penalties  under  this  chapter  belong  to  the  county,  585. 
STUD  HORSES. 

Not  to  be  exhibited  in  half  mile  of  religious  assemblies;  proviso,  500. 

Tax  on,  507. 
SUICIDE.     See  Crimes  ami  Punishments,  208. 
SUITS.     See  Courts, County  and  Superior. 

Tax  on  indictments  and  lawsuits  ?1;  on  equity  suits  $2;  —  for  the  county,  140. 
SULKIES,  tax  on.    See  Revenue,  510. 
SUNDAY. 

Process  in  civil  cases  not  to  be  executed  on  Sunday,  168. 

No  person  to  work  on  Sunday,  597. 
SUPERINTENDENT  OF  COMMON  SCHOOLS.    See  Literary  Fund  and  Common  Scliools. 

His  salary,  642. 
SUPERIOR  COURTS.     See  Courts,  County  and  Superior. 
SURETY  AND  PRINCIPAL. 

Summary  remedy  for  surety  against  principal,  585. 

Surety  may  sue  cosurety  for  ratable  part  of  debt  paid  for  principal,  585. 

May  dissent  from  stay  of  execution,  685. 

And  then  not  liable  to  surety  for  the  stay,  585. 

Officer,  how  to  collect  in  such  case,  586. 

Surety  paying  debt  of  deceased  principal,  to  have  like  priority  as  the  creditor,  586. 

Defendants  may  show  they  are  sureties;  the  fact  to  be  found,  184. 

Property  of  principal  to  be  first  sold,  184. 

Sureties  of  executors,  c&c,  in  danger  of  loss,  how  relieved,  289. 
of  guardians  in  danger,  &c,,  how  relieved,  324. 
of  sheriff  liable  for  all  fines  and  amercements,  560. 

of  returning  officers  in  governor's  election,  liable  for  theii"  forfeitures,  314. 
of  sheriff  on  his  death  may  collect  the  taxes,  521. 
may  report  sales  of  land  for  taxes,  521. 

In  suits  on  official  bonds   and  bonds  of  executors,  &c.,  evidence  against  principal  good  against 
sureties,  273. 
SURVEYS  AND  SURVEYORS.    See  Entries  and  Grants. 

Survey  in  case  of  disputed  boundary,  how  made  and  by  whom,  183. 

Charges  of,  taxed  as  costs,  163. 

Copies  of  plats,  &c.,  of  survey  from  secretary's  office,  evidence,  272. 

Oath  of  surveyor,  443. 

His  fees,  552. 

Suit  on  bond  of  surveyor  by  party  injured,  445. 

To  be  brought  in  six  years,  373. 

Board  of  valuation  to  order  survey,  in  certain  cases,  519. 
SWAMP  LANDS.  See  Literary  Fund;  Entries  and  Grants. 
SWAMPS.     See  Slaves  and  Free  Net/roes. 

Description  of  slaves  and  free  negroes  working  in  certain  swamps,  to  be  taken  and  recorded  by 
clerk,  566. 

TAR.     See  Inspections,  351. 

TAVERN-KEEPER.     See  Ordinaries  and  Inns ;   Crimes  and  Punishments. 

Tax  ou.     See  Revenue,  510. 
TAVERNS.     See  Ordinaries  and  Inns. 
TAX  COLLECTORS.    See  Revenue ;   Towns. 

To  be  sworn,  621. 

TAXES.     See  Revenue;  Cknmty  Revenue  and  Charges;  Toums. 
On  what  subjects  counties  may  lay  taxes,  140. 
On  what,  towns  may,  588. 
Sheriff  may  distrain  for  taxes,  521. 

61 


722  INDEX. 

TAX  LISTS.    SeeBevenue;  Tomnt. 

Forms  of,  prepared  by  treasurer,  618. 
TAX  RECEIPTS. 

CoUector's  receipts  to  show  separately  the  State  and  comity  tax,  529. 
TEACHING  SLAVES.     See  Crimes  and  Punishments. 

To  read  or  write,  &c.,  except  the  use  of  figures,  misdemeanor,  213. 
TENANTS  IN  COMMON.    See  Joint-Tenants. 

To  have  partition  by  court,  452. 

Mode  of  proceeding.    See  Partition, 

Estates  of,  how  sold  for  tax  ■where  some  of  them  are  infants  or  lunatics,  523. 
TERRITORIES  —  Included  in  "  United  States,"  581. 
THANKSGIVING-DAY,  set  apart  by  proclamation  of  governor,  315. 
THREATS  AND  THREATENING  LETTERS.     See  Crimes  and  Punishments. 

Sending  letters  of  menacing  demand  for  money,  misdemeanor,  224. 

Or  threatening  to  accuse  of  infamous  crimes,  to  extort  money,  224. 
TOBACCO.     See  Inspections. 
TOBACCO  PICKERS.     See  Inspections. 

Form  of  oath,  443. 

Fees  of  tobacco  picker,  554. 
TOLL-BRIDGES.    See  Boads,  Ferries,  and  Bridges. 

Allowed  by  county  court,  when,  538. 

To  be  kept  in  repair,  or  toll  forfeited  and  owner  indicted,  53S. 

Owners  of  ferries  may  substitute  toll-bridges  and  take  tolls,  &c.,  538. 

Owners  of  bridges  to  make  draw  where  necessarj',  638. 

Bonds  taken  by  county  court  of  owners  of  bridges  and  ferries,  538. 

Tax  on  toll-bridges,  &c.,  507. 
TOLLS.     See  Corporations;  Hoods,  Ferries,  aTid Bridges. 

May  be  taken  in  execution,  when,  135. 

Of  ferries  regulated  yearly  by  county  court,  638. 

Persons  attending  musters  not  to  pay  tolls  on  bridge  or  ferry,  409. 

Tax  on  tolls  of  ferries,  607. 
TOMBSTONES.    See  Crimes  and Pumahments ;  General  Assemhly. 
TON  TIMBER.     &ee  Inspections,  Zfil;  Crimes  and  Punishments,  22S. 
TOWN  CONSTABLE.    See  Towns;  Ccmlailei. 
TOWNS. 

Incorporated  towns  may  elect  commissioners,  587. 

To  be  a  body  corporate,  how  styled,  587. 

Qualification  of  commissioners  and  voters,  587. 

First  election  —  where  held,  and  number  of  commissioners,  587. 

When  afterwards,  and  how  conducted,  587. 

Inspectors  of  elections,  —  their  duty,  687. 

Election  tied,  decided  by  lot,  687. 

Number  of  commissioners  and  time  of  election  may  be  changed,  587. 

On  change  of  time  or  failure  to  elect,  officers  in,  to  hold  till  election,  588. 

Vacancy,  how  filled,  688. 

Mayor  may  be  elected  —  Tie  vote  how  detei-mined,  588. 

Term  of  oflice — Vacancy,  how  filled,  588. 

Shall  preside  at  meetings  of  commissioners,  take  oaths,  &c.,  588. 

Shall  have  judicial  powers;  — their  extent,  588. 

Appeal  allowed  from  his  judgment,  588. 

Commissioners  to  take  oaths,  688. 

Their  powers;  —  to  make  by-laws,  &c.,  588. 

May  lay  tax  —  on  what,  688. 

Appoint  constables  and  other  oflScers;  fix  their  compensation  and  take  bonds. 

Markets,  may  establish  and  regulate,  589. 

Nuisances,  abate,  589. 

Streets  and  bridges,  keep  in  repair,  689. 

Improvements,  may  make  by  assessment  of  labor,  &c.,  589. 

May  appoint  overseer  of  streets,  589. 

Citizens  exenipt  from  working  on  roads,  589. 


INDEX.  723 

TOWNS,  (Gmfemierf). 

Citizens  liable  for  neglect  to  work,  as  road  hands  are,  589. 

May  appoint  a  town  patrol,  589. 

By-laws,  may  enforce,  by  penalties,  589. 

Baker's  bread,  its  quality  and  weight  may  regulate,  589. 

List  of  taxables  to  be  taken  by  mayor,  589. 

Slaves  of  non-residents,  by  whom  listed,  589. 

Double  tax  when  to  be  paid,  590. 

Assessors  of  real  estate  appointed:  their  oath  and  duty,  590. 

Town  constables ;  their  oath,  power,  and  duty,  590. 

Shall  collect  tax,  give  bond,  and  have  the  powers  of  sheriff  to  collect,  590. 

Officers,  refusing  to  quahfy,  to  pay  $25,  590. 

Provisions  of  this  chapter  to  apply  to  all  incorporated  towns,  unless,  &c.,  590. 

Tax  on  dogs  —  If  not  paid,  how  enforced,  590. 

Annual  statement  of  taxes  and  expenditures,  to  be  published,  590. 

Otherwise  to  forfeit  and  pay  SlOO,  590. 

Town  auctioneers  to  give  bond,  104. 

JIalicious  burning  of  certain  houses  of  incorporated  towns,  felony,  203. 
TRADES  AND  TRADING.    See  Revenue. 

Tax  on  capital  employed  in,  510. 
TRADING  WITH  SLAVES.     See  Crimes  and  Punishments,  219,220. 

Fire-arms  or  other  weapons  not  to  be  sold  or  given  to  slaves,  219. 

Punishment  and  penalty  for  unlawfully  trading  with  slaves,  220. 
TRANSCRIPTS.     See  Appeals. 

Clerk  of  superior  court  to  give  receipt  for,  and  indorse  day  of  delivery,  74. 
TREASURER. 

Treasurer  biennially  elected,  his  oaths  and  bond,  591. 

Form  of  bond,  591. 

Duplicates  given ;  how  indorsed,  and  where  deposited,  592. 

On  failure  to  give  bond,  another  elected,  592. 

If  failure  occur  in  recess,  governor  and  council  to  appoint,  &c.,  692. 
Judgment  how  entered  on  bond,  592. 
"    Treasurer  to  keep  account  of  receipts  and  expenditures,  592. 
To  report  to  Assembly  at  each  session,  592. 
Committee  of  finance  to  examine  treasury,  &c.,  593. 
No  grant  or  warrant  paid,  unless  it  express  the  consideration,  598. 
Names  of  defaulting  revenue  officers  to  be  published,  593. 
Monthly  settlements  to  be  made  between  treasurer  and  comptroller,  693. 
Balance  in  treasury  deposited  in  banks,  693. 
Duplicate  certificates  of  deposits  to  b«  issued,  593. 
Treasurer  may  check  for  deposits,  593. 

Duty  of  treasurer  and  governor  when  bank  suspected  of  insolvency,  593. 
Treasurer  to  give  duplicate  receipts  for  money  paid  to  him,  593. 
No  receipt  good  without  comptroller's  indorsement,  693. 
Accounts  of  literary  and  other  funds  to  pass  through  comptroller's  office,  594. 
Certificates  of  the  State's  stocks  to  be  registered  and  indorsed  by  secretary,  694. 
Comptroller  to  indorse  them,  when  allowed  as  credits  to  treasurer,  694. 
Copy  of,  from  secretary's  office  good,  on  loss  of  original,  694. 
In  certain  cases  may  appoint  agents,  594. 
May  have  judgment  .against  agents,  as  against  sherlifs,  694. 
Office  hours  of  treasurer,  594. 

Penalty  for  failing  to  proceed  against  delinquents,  594. 
Proceedings  against  treasurer  and  sureties  for  defalcation,  594. 
Debt  of  State  to  have  priority,  594. 
May  receive  entry  money,  266. 
Also  public  money  recovered  by  suit,  127. 
Receipts  therefor,  filed  with  comptroller,  127. 

To  pay  no  warrants,  &c.,  unless  entered  and  certified  by  comptroller,  128. 
Fraudulent  entries  and  statements  by  treasurer,  how  punished,  216. 
Not  to  receive  notes  of  banks  issuing  bills  less  than  $3,  238. 

To  report  to  literaiy  fund  what  counties  have  levied  tax  for  support  of  deaf,  &c.,  82. 
To  receive  cash  funds  of  and  keep  account  with  asylum  for  deaf,  &c.,  83. 


724  INDEX. 

TREASURER,  ( Continued.) 

To  receive  moneys  of  insane  asylnra  and  taxes  laid  therefor,  90,  91. 

To  pay  ont  moneys  for  support  of  asylums,  83,  90. 

To  keep  the  accounts  of  the  Board  of  Internal  Improvement,  356. 

Also  of  the  literary  hoard,  378. 

To  keep  a  memorandum  of  State  bonds,  with  numbers,  &c.,  484. 

May  recover  on  motion,  penalties  imposed  in  chapter  "  Revenue,"  528. 
TREASURER  OF  PUBLIC  BUILDINGS.    See  Court  Ilmises,  Prisons,  tfc. 
TREATING  AT  ELECTIONS.     See  General  Assembly. 
TRESPASS. 

In  trespass  for  assault  and  battery,  if  damages  be  under  Si,  no  greater  costs  recovered,  177. 

In  trespass,  q.  c.f.,  defendant  may  disclaim  and  plead  tender,  &c.,  177. 

In  trespass,  assault  and  battery,  and  ejectment  against  several,  unless  all  acquitted  plaintiff  shall 
recover  costs,  177. 

Trespass  on  public  lands,  misdemeanor,  210. 

Trespasser  may  be  removed  by  sheriff,  210. 

Malicious  trespasses  and  injuries  to  real  estate,  misdemeanor,  224. 
TRUSTEES. 

May  invest  trust  funds  in  State  bonds,  485. 

Infant  trustees,  how  to  convey,  246. 
TRUSTS.     See  Mortgages,  and  Deeds  in  Trust ;   Uses. 

Trnst  estates  in  personalty  to  be  assets,  288. 

Liable  to  execution,  -when,  275,  276. 
TUMBLERS,  tax  on.  See  Revenue,  514. 
TURNPIKES. 

Lands  for,  how  condemned — see  Internal  Improtement, 
TURPENTINE.    See  Inspections,  550,  551. 

Turpentine  distillers,  tax  on  —  see  Revenue,  511, 
UNITED  STATES.  See  Statutes ;  Repeal,  cfc,  581. 
UNIVERSITY. 

Learning  to  be  promoted  in  universities  —  see  State  Constitution,  18. 

License  to  retail  in  two  miles  of  C.  Hill  forbidden,  696. 

Places  in  two  miles  of,  for  sale  of  liquors,  forbidden,  595. 

No  person,  without  written  permit,  to  sell  liquor  to  be  used  by  students  in  two  miles,  &c.,  596. 

Electioneering  treats  in  two  miles,  forbidden,  596. 

Billiard  and  gaming-tables  in  five  miles,  forbidden,  596. 

All  exhibitions  in  five  miles  without  license,  forbidden,  596. 

Violation  of  preceding  sections,  misdemeanor,  596. 

Contracts  with  minor  students  without  permission,  void,  896. 

May  be  avoided  under  plea  of  general  issue,  696. 

Incapable  of  confirmation,  696. 

University  endowed  with  escheats,  696. 

Estates  remaining  seven  years  unclaimed  in  hands  of  executors,  &c.,  paid  to  University,  267. 

Property  of,  not  taxed,  606.  * 

For  charter  of,  &c.,  see  2d  Vol.  of  "Revised  Sintutes,"  published  in  1836. 
USE  AND  OCCUPATION.     See  Landhrd  and  Tenant. 

Landlord  may  recover  for  use  and  occupation  where  demise  is  not  by  deed,  868. 

One  let  into  possession  under  contract  of  purchase,  liable  for,  368. 
USES.     See  Titists. 

By  conveyance  to  uses,  possession  transferred  to  use,  270. 

Widows  may  be  endowed  of,  602. 

Liable  to  sale  under  execution,  275. 

Churches  and  religious  societies  may  possess,  &o.  —  of  what  value,  600. 
USURY. 

No  more  than  six  per  cent,  to  be  taken  for  interest,  697. 

Persons  taking  more  to  forfeit  double  the  value  forborne,  597. 
VAGRANTS. 

To  be  recognized  and  indicted,  210. 
VARIANCE. 

Between  judgment  and  execution  not  to  aiTect  title  of  purchaser,  274. 


INDEX. 


725 


VENUE. 
Of  suits,  &c.,  at  law,  164. 

Real  and  penal  actions,  pleas  of  the  State,  &c.,  brouglit  in  the  county  where  cause  of  action,  &c  ,  164. 

Other  actions,  where  both  parties  reside,  164. 

Where,  when  plaintiff  resides  out  of  the  State,  164. 

Where,  wlien  plaintiff  and  defendant  reside  in  different  counties,  164. 

Defendant  not  to  be  sued  in  superior  court  out  of  his  county  for  less  than  SlOO,  164. 

Actions  otherwise  brought  abated  on  plea,  164. 
Of  suits  in  Equity. 

No  decree  against  non-resident,  unless  cause  of  suit  arose,  or  property  in  question  be,  in  the  State,  190. 
Of  Chimes. 

Crimes  committed  on  waters  dividing  counties,  where  tried,  232. 

Improper  venue  of  indictments  to  be  pleaded  in  abatement,  232. 

On  issue  joined  what  judgment  in  misdemeanors,  what  in  felonies,  233. 

Assault  and  death  in  different  counties,  trial  where  assault,  233. 

Assault  in  the  State,  and  death  out  of  it,  trial  in  the  State,  233. 
VESSEL.     See  Pilots;   Quarantine  and  Health ;   Wrecks. 

Slaves  not  to  be  carried  on  vessels  unless  permitted  by,  or  travelling  with  their  masters,  579. 
VICE  AND  IMMORALITY. 

No  person  to  work  on  Sunday,  597. 

Penalty  for  profanely  swearing  before  a  single  justice  holding  court,  598. 
VISITORS. 

Who  shall  be  visitors  of  asylums,  91. 
VOLUNTEER  COMPANIES.     See  miilia. 

WARDENS  OF  POOR.    See  Poor. 

Pay  of,  474. 

Exempt  from  working  on  roads,  541. 
WARRANTS.     See  Justices  of  the  Peace;  Pihts. 

General  warrants  forbidden — see  Declaration  of  Rights,  9. 

Warrants  for  survey  of  entered  land  —  see  Entries  and  Grants. 
WARRANTS  ON  TREASURY.     See  Treasurer. 

Treasurer  not  to  pay  warrants  or  orders  unless  their  consideration  is  expressed,  693. 
WARRANTY. 

Collateral  and  certain  other  warranties  void,  271. 

To  stand  as  personal  covenants  only,  271. 
WASTE. 

For  and  against  whom  action  for  waste  lies,  598. 

Tenant  for  life  aliening,  still  to  be  liable,  598. 

Judgment  for  treble  damages  and  place  wasted,  698. 

Action  by  tenant  against  cotenant,  598. 

Heirs  shall  have  the  action,  598. 

Lands  of  infants  to  be  kept  from  waste,  322. 

Guardian  may  sell  timber,  when,  322. 

WATCHES,  tax  on.     See  Revenue,  510. 

WAY.     See  Religious  Societies ;  Roads,  Ferries,  (fc. 

To  pl.aces  of  worship  not  to  be  stopped,  on  pain,  i&c,  500. 

Cartways  over  others'  lands,  how  obtained,  640. 
WEIGHTS  AND  MEASURES. 

What  weights  and  measures  to  be  used,  599. 

Justices  to  procure  weights  and  stamps,  599. 

Governor  to  procure  measures,  599. 

Standard  keeper  appointed  —  His  oath  and  bond,  599. 

Weights  and  measures  tried  by  standard  keeper  once  in  two  years,  and  certificate  given,  599. 

Penalty  for  not  having  them  examined,  600. 

For  selling  or  buying  by,  when  not  stamped  or  branded,  600. 

Acre  of  land,  of  what  measure  to  be,  600. 
WELLS  AND  SPRINGS. 

Wilful  injuries  to,  misdemeanor,  221. 


'26  INDEX. 

WIDOWS.     SeeLeffacies. 

Widows  of  intestates,  and  widows  dissenting  from  husband's  will,  may  take  dower  601. 

Fraudulent  conveyance  not  to  defeat  dower,  601.  ' 

Dower  to  include  dwelling-house,  unless,  &;c.,  601. 

Proceedings  to  obtain  dower,  601. 

When  lands  lie  in  several  counties,  602. 

Jurj'  not  bound  to  assign  dower  on  each  tract,  602. 

Proceedings  to  be  summary,  602. 

Jury,  how  to  allot  in  case  of  dissent,  602. 

Allowed  in  rights  of  redemption,  trusts,  &c.,  602. 

How  obtained  of  lands  in  this  and  other  States,  602. 

Dower,  and  land  in  lieu,  not  subject  to  husband's  debts,  602. 

Entitled  to  emblements>603. 

Sale  by  widow  of  dower  land,  to  convey  her  right  only,  603. 

Wife  eloping  with  adulterer,  barred  of  dower,  603. 

Widow  dissenting,  to  take  as  on  intestacy,  603. 

Her  share  allotted  if  practicable,  without  deranging  the  will,  603. 

Not  dissenting,  to  have  a  share  of  intestate  property,  603. 

Claiming  under  will,  as  to  creditors  considered  a  legatee,  603. 

Widows  of  intestates  leaving  no  kindred,  to  have  all  the  personalty,  603. 

Proceedings  to  obtain  the  same,  603. 

To  give  bond  to  refund,  if  kin  appear  in  seven  years,  604. 

Saving  for  infants  and  persons  mm  compos,  604. 

Widow  of  intestate  may  take  possession  of  personalty  till  administration,  604. 
Provided  she  applies  for  letters  at  the  first  court,  604. 
Entitled  to  year's  provision,  and  certain  articles  if  on  hand,  604. 
May  retain  specific  articles,  604. 
Proceeding  to  obtain  year's  provision,  604. 
What  decree  made  on  confirmation  of  report,  605. 

When  petition  filed  before  administration,  what  to  be  allotted,  and  how,  606. 
Property  allotted,  vested  in  widow  for  self  and  family,  605. 
WILLS  AND  TESTAMENTS. 
How  executed,  606. 
Ages  of  testators  and  executors,  607. 
Wills  of  married  women,  how  and  where  proved,  607. 
Appointments  by  will,  executed  like  other  wills,  607. 
All  property,  rights,  and  interests,  disposable  by  will,  607. 
Construed  to  speak  as  at  the  death  of  testator,  008. 
Lapsed  and  void  devises  to  pass  under  residuary  clause,  608. 
A  general  gift  to  include  estate  which  testator  has  power  to  appoint,  60S. 
Executor  competent  witness,  608. 
Devises  and  bequests  to  witnesses,  void,  608. 
What  nuncupative  will  good,  where  the  estate  exceeds  $200,  609. 
How  proved;  next  of  kin  cited,  &c.,  609. 

County  courts  to  Iiave  jurisdiction  of  the  probate  of  wills,  609. 
Production  of,  compelled  by  court,  609. 
Persons  refusing,  committed  to  jail,  609. 
Proved  in  the  county  where  testator  resided,  609. 
Manner  of  proving  them,  609. 
When  caveated,  tried  by  jury,  609. 

Made  in  another  State  disposing  of  property  in  this;  how  proved,  609. 
Wills  of  non-residents,  how  allowed  and  recorded  in  this  State,  009. 
Not  to  pass  lands  in  this  State,  unless  executed  according  to  its  laws,  610. 
Wills  of  citizens  proved  elsewhere,  how  certified,  proved,  and  recorded  here,  610. 
Wills  to  be  filed  in  clerk's  oflice,  610. 
None  effectual  without  probate,  610. 
Probate  conclusive,  when,  610. 
Copies  evidence  of  their  contents,  610. 
Written  wills,  how  revoked,  610. 
Revoked  by  marriage,  611, 
Not  by  altered  circumstances,  611. 
Nor  by  conveyances,  after  will  executed,  611. 
Devises  construed  iu  fee  unless  the  contrary  appear,  611. 


727 


WILLS  AND  TESTAMENTS,  { Coniimed). 

What  slaves  pass  under  "  increase,"  611. 

Gifts  to  issue  dying  and  leaving  issue  living  at  testator's  death,  to  vest  in  living  issue,  611. 

Child  born  after  parent's  will  executed,  entitled  as  on  intestacy,  612. 

How  to  proceed  in  such  case,  612. 

His  share  of  real  estate,  allotted  from  undevised  lands  if  any,  612. 

Otherwise,  of  devised  land,  612. 

Of  personal  estate,  allotted  of  intestate  property,  if  any,  612. 

Otherwise,  of  property  bequeathed,  612. 

All  intestate  property  applied  in  exoneration  of  property  devised  or  bequeathed,  612. 

Such  child  to  be  seized  in  fee,  612. 

Devisees  and  legatees  entitled  to  contribution  from  each  other,  612. 

After  decree,  petitioner  deemed  legatee  and  devisee,  613. 

If  such  child  do  not  proceed  in  two  years,  executor  to  proceed,  613. 

Eights  of  such  child,  a  lien  on  the  whole  estate,  613. 

Wills  in  office  of  secretary  proved  by  copy,  274. 

To  be  deranged  on  widow's  dissent  as  little  as  possible,  603. 

SteaUng,  destroying,  or  concealing  wills  of  living  or  deceased  persons,  misdemeanor,  208. 
WINES. 

Tax  on  dealers  and  retailers  —  see  Jievenue,  510,  511. 
WITNESSES. 

Subpcenas  for,  issued  by  clerk;  how  to  issue,  172. 

If  returnable  forthwith,  must  be  issued  in  term  and  served  personally,  172. 

When  issued  in  vacation,  served  personally  or  by  leaving  a  copy,  172. 
^      After  cause  removed  may  issue  from  either  court,  175. 

To  attend  till  discharged,  172. 

Penalty  for  not  attending:  —  in  civil  cases  $40,  in  criminal  S80,  172. 

During  attendance,  &o.,  exempt  from  service  of  civil  process,  168,  175. 

Refusing  to  give  evidence  in  court,  to  be  imprisoned,  175. 

Execution  not  to  issue  against  defaulting  witness,  till  aftersc»./a.,  173. 

Fees  of  witnesses,  175. 

To  be  paid  for  attending  after  suit  settled  in  vacation,  unless  notified,  172. 

For  attending  a  jury  of  view,  commissioners,  arbitrators,  &c.,  174. 

To  prove  attendance  by  oath  at  each  term,  175. 

May  recover  pay  from  party  summoning,  176. 

On  final  judgment  tickets  paid,  filed  and  taxed  as  costs  176. 

Party  cast,  taxed  with  but  two  witnesses  to  prove  same  fact,  176. 

Subposna  to  attend  commissioners,  &c.,  in  certain  cases  issued  by  clerk,  175. 

May  be  summoned  to  give  their  depositions,  &c.,  173. 

Sheriff  to  summon  them  on  pain,  &c.,  174. 

Refusing  to  depose  or  be  examined,  committed  to  jail,  174. 

CommiUUitr  to  recite  the  authority  and  cause,  &o.,  174. 

Defaults  of  witnesses  noted  by  commissioner,  174. 

If  made  before  a  commissioner  .appointed  out  of  the  State,  fined  $50,  174. 

What  shall  be  evidence  of  the  default,  174. 

Default  before  commissioner  in  the  State,  certified  to  court,  174. 

Proceedings  thereon,  174. 

Witness  attending  supreme  court,  under  same  rules  as  other  witnesses,  198. 

In  criminal  cases  not  to  attend  till  St.ate's  day,  234. 

To  be  paid  as  in  civil  cases,  234. 

State  witnesses,  when  paid  by  the  county,  141. 

Subpcena  duces  tecum  may  issue,  when,  177. 

Witnesses  to  deeds,  &c.,  may  be  summoned  to  prove  them,  247. 

Executor  competent  to  prove  a  will,  608. 

Devisees  and  legatees  attesting  as  witnesses,  to  take  nothing,  —  may  depose,  603. 

Party  whose  name  is  forged  a  competent  witness,  232. 

Participator  in  unlawful  games  compelled  to  testify  of  the  gaming,  236. 

Not  to  be  prosecuted  therefor  after  deposing,  236. 

Players  and  betters  at  unlawful  games  competent  witnesses,  302. 

Their  confessions  not  to  be  evidence  ag.ainst  them,  302. 

Voters  compelled  to  testify  how  they  voted,  unless,  &c.,  310. 

Not  to  be  indicted  after  deposing,  310. 


728  INDEX. 

WITNESSES,  ( Continued). 

Witnesses  fuiliiig  to  depose  in  contested  elections  fined  SIO,  310. 

Pay  of  witnesses  in  such  cases,  310. 

Accomplice  in  fire  hunting  giving  evidence,  discharged,  221. 

Commissioners  of  navigation  may  issue  subpoenas,  462. 

In  trials  before  justice  ho  shall  direct  officer  to  summon  witnesses,  303. 

Penalty  for  not  attending,  365. 

After  appeal  from,  justice  may  direct  witnesses  to  be  summoned,  366. 

How  summoned  before  court-martial,  420. 

Oath  of  witness  to  depose  before  gr.and-jury,  443. 
sworn  in  a  capital  case,  443. 

in  criminal  cases,  not  capital,  443. 
in  civil  cases,  443. 
to  prove  a  will,  443. 

Evidence  of  slaves  and  free  persons  of  color,  against  whom  allowed,  578. 

When  witnesses  to  be  warned  to  speak  the  truth,  578. 
WOMEN. 

What  words  spoken  of  women  actionable,  563. 

Executnx,  &c.,  may  swear  to  inventory,  &c.,  before  justice,  293. 

Female  guardians  may  swear  to  their  returns,  before  justice,  324. 

Women  not  to  be  imprisoned  for  debt,  339. 

May  render  their  tax  list  before  any  justice,  517. 
WOODS.     See  Burning  WooJs,  and  Hunting. 
WORDS. 

Construction  of.     See  Statutes;  Repeal,  tfc. 
WRECKS. 

Wreck  districts  in  certain  counties,  how  laid  off,  614. 

Hyde  county  may  lay  off  districts  for  itself,  615. 

Commissioners  of  wrecks  appointed  by  county  court;  their  bond  and  oath,  615. 

Shall  reside  in  the  district  and  not  be  pilot  or  officer  under  the  United  States,  615. 

Their  duty  when  vessels  are  in  danger,  615. 

Salvors  to  be  paid,  615. 

Sum  to  be  ascertained  by  referees,  if  parties  cannot  agree,  615. 

Superior  court  may  examine  award,  616. 

Commissioners  to  take  charge  of,  sell,  &c.,  wrecked  property,  616. 

To  render  account  of  sales,  616. 

Their  compensation,  616. 

Sales  advertised;  how  long  and  where,  616. 

How  to  proceed  when  property  is  damaging,  616. 

Commissioner  not  to  take  salvage,  616. 

None  to  interfere  with  his  rights,  616. 

When  there  is  a  wreck  and  no  person  claiming,  whivt  to  be  done,  617. 

Goods  to  be  sold,  and  proceeds  sent  to  county  court,  617. 

If  not  claimed  in  one  year,  to  belong  to  treasury,  617. 

Fmders  of  wrecked  property  to  notify  commissioner,  617. 

Penalty  for  concealing  it,  617. 

Finders,  concealing  stranded  goods,  deemed  guilty  of  larceny,  617. 

Stealers,  embezzlers,  and  receivers  of  such  goods,  deemed  guilty  of  larceny,  618. 

Penalty  on  commissioners  for  abuse  of  trust,  618. 

On  persons  refusing  to  aid  in  saving  vessels  or  cargo,  618. 

Summons  to  aid,  proved  by  commissioner,  618. 

Finders  of  wrecked  property  at  sea,  to  deliver  it  to  commissioner,  618. 
WRITS  OF  ERROR. 

In  county  or  superior  court,  to  be  brought  in  five  years,  75. 

Proviso  for  persons  disabled,  75. 

Bills  of  review  and  writs  of  error  in  civil  cases  in  supremo  court,  may  bo  brought  in  two  years,  199. 
YEAR.     S^e  Statutes,  Repeal  ami  Construction  of ;  Leap-Year. 
YEAR'S  PROVLSION. 

Widow  entitled  to  year's  provision,  and  certain  articles  if  on  hand,  604. 

Proceedings  to  obtain  the  same  —  see  Widows,  604. 


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